By Vivian S. Toy
RISMEDIA, June 26, 2007-(NYTimes.com)–What kind of people live in this building?
That is often the first question brokers are asked by apartment hunters be they couples with children, retirees seeking peace and quiet or 20-somethings prone to the occasional raucous party.
But in recent months, thousands of brokers have learned that in answering that question, they might just be breaking the law. Many real estate ads, for instance, use family friendly to describe large apartments. But according to a strict interpretation of federal, state and local fair-housing laws, that is illegal.
“If a family with children wants to know if there are other children the same age in a building, we’re supposed to say, “You should stand outside the building between 2 and 5 p.m. and see who walks in,” said Michele Kleier, the president of Gumley Haft Kleier. “But how do you say something like that with a straight face?”
A glance at real estate listings online reveals that there are still companies whose ads say things like ‘Best family building in New York,’ but there are many more that in the interest of fairness or out of fear of a lawsuit have cleansed their ads and are retraining their brokers.
Fighting discrimination in real estate is hardly new in New York City, but it has become a hot topic lately. The renewed focus was sparked mainly by a complaint filed last fall that brokers in the Brooklyn Heights office of the Corcoran Group had engaged in racial steering. Corcoran denies the charges, which are pending before the federal Department of Housing and Urban Development.
In addition, a proposed city law that would require co-op boards to provide, in writing, their reasons for rejecting a potential buyer, also has board members and brokers reviewing precisely what constitutes discrimination.
Real estate lawyers say there are lots of other descriptions and terms that could trigger discrimination lawsuits, prompting many brokers to watch what they say in front of clients and to scour their ads for risky words. Unacceptable terms include “adult community,” “bachelor pad,” “near churches” and “no children.”
Lawyers also warn against listing specific school districts and using catchphrases like “great for families,” “nanny’s room,” “quality neighborhood” and “senior housing.”
The strict interpretation of fair-housing laws prohibits brokers from providing information about people that could be construed as discriminatory in any of 14 protected categories. The categories include familiar ones like race, religion, sex and disabilities and less well-known ones like familial status, marital status, citizenship and occupation.
So a broker who says something like, “There are tons of little kids in this building, it’s really family friendly” could be accused of specifically steering families to the building and driving people without children away from it.
The Real Estate Board of New York holds several training seminars on fair-housing laws every year. This year, Neil Garfinkel, residential counsel for the board and the person who runs the seminars, has also held special training sessions for several companies. He estimated that he has already trained about 2,000 brokers since January.
Larger companies, including Corcoran and Halstead Property, have their own lawyers and run their own training sessions.
The State Legislature last week passed legislation that will require all brokers seeking to renew their licenses to undergo at least three hours of fair-housing training as part of their 22 hours of continuing education. (Similar training is already required for initial licensing.)
The real estate board joined with the New York State Association of Realtors in March to sponsor the amendment. After Garfinkel’s recent seminar at Gumley Haft Kleier, Kleier said she had her staff comb through the agency’s advertisements and remove wording that suggested a building might be “great for families.”
“In my mind, it’s so restrictive it takes away part of the job that the public has relied on brokers to do,” Kleier said. “To be able to tell them: Is this building a place where I’m going to be comfortable? Or if my kids run through the lobby, am I going to be looked at cross-eyed?”
Brokers are often hired for their expertise in a specific neighborhood or building, and not being able to share certain information will make a broker’s job that much harder, she said.
Garfinkel said that Kleier is certainly not alone in her apprehension.
?A lot of brokers are concerned about the push-back from customers who feel that, ?You’re my broker ? why aren?t you helping me and answering my questions?? ? he said.
His advice to brokers is to state clearly at the first meeting with any client that as brokers, they must adhere to all fair-housing laws.
??Then when a question is asked, you can say, ?Remember we talked about fair-housing laws? This is what’s against the law for me to talk about,? ? he said.
City laws cover more areas than state and federal laws, delineating 13 protected categories, compared with 11 delineated by the state and by the federal government. Many categories are covered by all three.
Most brokers are well aware of what’s against the law when it comes to race, religion and sex, Garfinkel said, but the laws on family status and occupation often draw gasps of surprise from brokers at his seminars.
“But that’s exactly why we’re doing what we’re doing,” he said.
Garfinkel goes on to warn brokers that they should not identify the school districts where apartments are located. This, despite the fact that real estate ads often boast that an address is zoned for top-rated schools like P.S. 6 on the Upper East Side or P.S. 234 in TriBeCa.
He said that while it is all right to name a school district when specifically asked, the fact should not be advertised because some school districts have distinctive racial compositions and advertising the district could be seen as a way of expressing preference for a specific race. Brokers are often stunned by this prohibition, he said, “but I’m a lawyer, and I’m going by the strict letter of the law.”
Steven James, the president of all Manhattan offices of Prudential Douglas Elliman, said he had brought Garfinkel in to speak to his brokers because “people sometimes say stupid things without thinking, and this brings everybody back to reality.”
The brokers were in for some surprises. Garfinkel explained that to follow the city law regarding occupations, they should not ask people what they do for a living.
“I think that blew everybody’s mind,” James said. “I don’t think we’ve recovered from that yet.”
The question is natural in the course of any getting-to-know-you conversation, James said, “but the point is what’s normal and everyday may not be legal.”
Garfinkel said that the occupation protection is often referred to as “the attorney law,” because it is meant to stop buildings from discriminating against lawyers some buildings fear that they will be litigious and consequently bad neighbors.
“Conceptually, it makes sense to me because why is it relevant what a person’s title is as long as they can afford the apartment,” Garfinkel said.
Hall Willkie, the president of Brown Harris Stevens, said his firm had to turn down at least three exclusive sales in recent years because the owners insisted they did not want to sell to lawyers.
“We’ve had to tell them that as licensed brokers, we’re sorry but we can’t do that,” he said.
“Some people think the laws go too far,” Willkie said. “But they need to go far, because these problems do exist.? Stepped up training, he added, ?helps to sensitize us to try do what is right, and it prevents brokers from even inadvertently collaborating with owners to do something that the city has decided is not legal.?
The proposed law requiring co-op boards to give written explanations for their rejections gave impetus to the real estate board and the Council of New York Cooperatives and Condominiums to redouble their efforts at fair-housing training. The council and other co-op and condo organizations oppose the proposal and sent out an ?action alert? last April urging their constituents to lobby City Council members and tell them that existing fair-housing laws make the bill unnecessary.
The real estate board and the co-op and condo council together have developed a two-page sheet on antidiscrimination requirements that they recommend be included in every application that goes before a co-op board. They also have put together a sheet on ?buyer’s rights? that they recommend be given to every co-op applicant.
?It’s all part of an education process for board members and buyers, so that all sides understand what kinds of protections already exist and so they know what kinds of questions can and can?t be asked,? said Eva Talel, a real estate lawyer who advises the real estate board?s Residential Management Council.
The antidiscrimination sheet falls far short of the disclosure that would be necessary if the City Council passes the law on co-op rejections. Nearly two-thirds of the members of the City Council have signed on as co-sponsors, but the council speaker, Christine C. Quinn, has said she opposes the bill since existing housing discrimination laws already offer redress.
The proposed law would require co-op boards to provide a written explanation for any board rejection and to reveal the source of any negative information it received about a prospective buyer. Boards could be fined if they did not provide this information within five days of their decision.
Arthur I. Weinstein, a real estate lawyer and a vice president of the co-op and condo council, said that in an annual workshop on admissions procedures he presents to co-op board members, he urges them to review their application processes and to remove any questions that pertain to the 14 protected categories.
?There’s always someone who says: ?Oh my God, we ask those things all the time,? ? he said. It doesn’t matter how innocuous the question is. The trap is once you’ve asked it, you set yourself up for the charge that a rejection is based on that information.?
Invariably, much of the information may come out anyway, either volunteered by applicants or revealed in tax filings or other financial documents, but the board protects itself by not directly asking the questions.
State courts have long ruled, Weinstein said, that co-op boards have a right to choose their neighbors as long as they do not violate fair-housing laws.
?But what the proposed law would do is prevent co-op boards from making character determinations,? he said. It would pressure boards into accepting a potentially troublesome neighbor who has a reputation for excessive litigation or someone who has a woofer system that blares at x-amount decibels ? even though those kinds of people are not a protected class.?
Lawyers and brokers agree that the current emphasis on antidiscrimination is not necessarily a bad thing.
“Blatant discrimination, people don’t do,” said Diane Ramirez, the president of Halstead Property. “But there are gray areas where brokers might think they’re helping a seller, but what they’re doing or saying could be misinterpreted.”
That’s why, she said, Halstead requires all its brokers, even the veterans, to attend annual fair-housing seminars.
“We want to be sure our agents understand the grayness that exists, and the only way to do that is make sure they keep hearing it,” she said.
Pamela Liebman, the president of the Corcoran Group, said her company began a fair-housing education campaign for its brokers more than a year ago, long before the National Fair Housing Alliance, a consortium of groups that works against housing discrimination, accused Corcoran of racial steering last October. In its report, the alliance accused Corcoran brokers of “blatant housing discrimination against African-Americans, as well as steering of whites away from neighborhoods of color.”
In addition to seminars for brokers, Corcoran’s efforts include a computer program that automatically screens property listings for unacceptable language.
“Some words get completely blocked, and others flash a warning on your screen,” Liebman said. “It’s a huge list of words, but we have zero tolerance for violations.”
Liebman said that only one of the four agents accused in the complaint still works for Corcoran. “I believe that in each instance our agents acted in the proper way,” she said. “And when all the facts are gone through, I hope we will be vindicated.”