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The Intricacies of Advertising and the Fair Housing Act

Real Estate Agent with Realty ONE Group

On Sunday on my home blog at AllPhoenixRealEstate.comI posed the question regarding the following statement from a craigslist housing for sale by owner ad, asking readers to spot the potential violation of the Fair Housing Act:

Sunland Village is easily one the cleanest, nicest 55 and over communities in the East Valley – beautiful golf course, pools, and all the amenities one could wish for. An immaculate, safe community full of friendly, active individuals.

I then posed the question on a Facebook forum inhabited largely by real estate agents; the thread is at 103 comments and counting.

Before I get lost in the explanation, let me tell you the answer - sellers and real estate agents cannot use the word “safe” or other subjective terms when describing a neighborhood because any such term could lead to steering – the act of directing buyers toward or away from any given area based solely on subjective criteria.

“Screw free speech. This nation is doomed.”

That was one of the comments on the thread; another discussion went the direction of political correctness and the idea that your average person no longer can speak like a human being lest offense be given somewhere to someone. (For evidence of PC at it’s most absurd, yet based in historical precedent, check out the “brown bag” controversy in Seattle.)

If one only considers the racism and discrimination that led to the Fair Housing Act in its most overt forms - George Wallace or Ross Barnett barring the doors to schools or separate drinking fountains and restrooms and seating areas – there would seem to be no problem in describing an areas as “safe”.

But the problem is there is no way to define an areas as safe, as everyone’s ideas of what constitutes safe are different. Another comment from the thread …

I live on a street where you have to lock your cars at night because we have car break ins (well not really break ins, as they only target unlocked cars). I also have teens racing down my street who might kill a small child after school. Does this make this an “unsafe” neighborhood, well no, not to me, but you can’t pay me to live in some areas of my metro area, where the news reports of shootings weekly. That’s me. I can handle car break ins, and speeding, not shootings. Some people might want the character and nightlife that comes w/the shootings, thinking where I live is boring, and find that’s a fair trade off.

There’s a little more to it than even that. If a buyer is asking if a given area is “safe,” the unspoken half of that question is “which areas are unsafe?” Because, just as you can’t have the darkness of shadows without light, or cold without warmth as a contract, you can’t have safe without the opposition of unsafe.

What about using documented figures, you ask? Consider this …

I could compare the crime stats between Area A and Area B to determine which one is safer for a particular client on that basis. But what about the crime rates in areas C, D or F? How could I, if needed, selectively choosing to compare and contrast these two neighborhoods but not those over there, wherever there may be? And if, by chance, any of the areas either considered or not considered has a higher proportion of non-Caucasians … is any defense really going to be possible, no matter how plausible?

Not to mention, there’s a chance that in asking whether a given area is safe, a potential buyer could be asking about the racial makeup of an area. And by advertising a neighborhood as safe, the seller could be trying to signal through the use of a code word that there is a particular racial balance in an area.

Think that’s far-fetched? Take a look at Article 35 of the National Association of REALTORS’ Code of Ethics as revised in 1952 …

A Realtor should not be instrumental in introducing into a neighborhood a character of property or use which will clearly be detrimental to property values in that neighborhood.

Hmmmm … at face value, maybe this only says agents should not be instrumental in bringing a brothel into a neighborhood with an elementary school a block away. But is it so much of a stretch to believe there’s a slightly less savory component to that article?

It’s not hard to find online references to the COE prohibiting agents from showing properties in “White” neighborhoods to African-American buyers back in the day. Having read through several versions of the COE yesterday spanning 40 years, I could find no clause that even suggests that … except for the one above.

By the way … Article 35 was removed from the Code of Ethics during the 1955 revision. I’m not sayin’, I’m just sayin’.

* * *

So here is the good news in all of this.

Clearly, the idea that buyers, sellers and real estate agents would use code words to describe areas as predominantly white – safe, quiet, upscale, friendly, desirable, well-maintained, classy, serene or even beautiful – is foreign to many minds today.  One more comment …

FH should be working toward defeating racism and these conversations honestly seek to dig it up and those who don’t judge people by the color of people skin (as was said 50 years ago today) is going to have a hard time drawing these same conclusions that between safety and race

William Lee Miller summarizes this idea beautifully in his book, “Lincoln’s Virtues.”Speaking of those of today’s age who criticize Abraham Lincoln for racist tendencies, such as publicly acknowledging that blacks and whites should not be considered as equals or to support possible colonization to Liberia, Miller writes …

“The modern derogation of Lincoln on racial grounds is a perverse reflection, of one side, of the progress we have made, which makes it extremely difficult and unsettling to think one’s way back into the conditions of that time and place.”

For those who still believe even subtle prejudice in housing matters is a thing of the distant past, an anecdote.

Back in 2005, near the end of my first full year in the business, an agent in my office referred a couple to me. He described what they were trying to find and then said, “let’s just say they don’t like fried chicken and watermelon and they don’t like chimichangas.”

That only was eight years ago.

As for back in the day, take the case of former major league baseball player Curt Flood …

Months after winning their first championship in 1964; Flood purchased a house for his new family in what was thought to be racially tolerant Oakland, California. The manager of the property refused to allow the Floods to enter due to the fact that his family was black and vowed to stay at the house gun in hand. Flood, a man of principles, took him to court, won and spoke publicly on camera about being denied his simple rights to live as a human being.

Yes, those days are past. Sadly, the absolute continued need for the Fair Housing Act and our obligation to enforce its tenants, has not.

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Don Reedy

Jonathon, I agree with your assessment of the value of this post, although for different reasons.  I think this post, from a highly respected individual (that would be you by the way), puts to rest the idea that real estate agents can and should think critically, creatively, passionately and honestly with their clients.  I don't know if it's "safe" to say this, but here's my conclusion that I posted on your Facebook page:

 I was part of the marathon, and what the discussion did do was remind me that our DNA is now "deoxyribonucleic PC acid." I just get that there have to be guidelines for the ignorant. I just don't want to be herded into that group. I continue to think that I can offer information on "safety"...and not be steering. I still think that I can digest crime statistics and share them with a client...whose question is about safety. I still believe that an honest man's opinion is to be valued more than a diluted dictionary of terms we dare not utter because somewhere, some place, a bigot is alive and well.

Aug 27, 2013 09:04 AM