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NYSAR Fair Housing Resource Guide 

NYSAR Fair Housing Resource Guide

Discrimination against a member of a protected class in the sale or rental of real property is prohibited by federal, state and local laws.  This guide reviews the responsibilities of brokers and salespersons under existing anti-discrimination laws, codes, rules, regulations and policies.

FEDERAL ANTI-DISCRIMINATION LAW
At the federal level, there are two main statutes dealing with discrimination in housing which apply to all real estate licensees in all states: the Civil Rights Act of 1866 (42 U.S.C. §1982) and the Fair Housing Act of 1968 (42 U.S.C. §§3601 et seq.), which was last amended in 1983. The Civil Rights Act of 1866 is limited to racial discrimination in connection with all transactions involving real property. The Fair Housing Act of 1968, as amended, makes it unlawful for anyone to discriminate on the basis of race, color, religion, sex or handicap or national origin in the selling or rental of property, or in negotiations relating thereon. It also prohibits such discrimination in advertising the sale or rental of dwellings.

HUD has also issued guidance on other types of discrimination based upon the Disparate Impact Theory (DIT). In 2015, the Supreme Court issued a decision in the case of Texas Department of Housing & Community Affairs v. Inclusive Communities Project (135 S.Ct. 2507). In the decision, the court applied the DIT to a fair housing claim. Under the DIT, an individual may claim to have been subject to discriminatory conduct without proof of any intentional discrimination. Such discrimination may be found if a business practice has a disproportionate effect on certain protected groups of individuals and if the practice is not grounded in sound business considerations. There are also some on the application of DIT “to protect potential defendants against abusive disparate-impact claims limitations.” For instance, the showing of a racial imbalance, without more, cannot be found to show a discriminatory act sufficient to sustain a DIT claim. Those individuals claiming discrimination under DIT would need to show a “robust” causal connection between the challenged business practice and the alleged disparities. Those accused of discriminatory conduct under DIT may justify their positions so long as they are “not contrary to the disparate-impact requirement, unless … artificial, arbitrary, and unnecessary.”

In providing the guidance, HUD relies entirely on the DIT set forth in the Supreme Court decision. According to HUD, there are two types of recognized discrimination related to DIT, use of criminal background checks for tenants and an individuals Limited English Proficiency.  A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. Under this standard, a facially-neutral policy or practice that has a discriminatory effect violates the Act if it is not supported by a legally sufficient justification. Thus, where a policy or practice that restricts access to housing on the basis of criminal history or Limited English Proficiency has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect.

STATE ANTI-DISCRIMINATION LAW
1. New York State Anti-Discrimination Law. New York’s Human Rights Law (N.Y. Executive Law §296); Civil Rights Law (Article 2-A, §§18-19), Real Property Law  §227-d and Public Housing Law (Article XI §223) make it an unlawful discriminatory practice to refuse to sell, rent or lease housing accommodations, land or commercial space to anyone, or to discriminate, or to refuse to negotiate for the sale, rental or lease of such premises to anyone because of race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, age, disability (including the use of an animal as a reasonable accommodation to alleviate symptoms or effects of a disability), marital status, lawful source of income, familial status, blindness, hearing impairment, or use of a hearing service or guide dog. It is also unlawful to advertise or use any form of application for the purchase, rental or lease of housing accommodations, land or commercial space, or to record or make any inquiry in connection with the prospective purchase, rental or lease of such properties, which expresses or intends any limitation, specification or discrimination with respect to those same characteristics.  Furthermore, it is unlawful discriminatory conduct to refuse to rent to a victim of domestic violence pursuant to Real Property Law §227-d.

  1. State License Law and Regulations.New York’s License Law (Article 12A of the Real Property Law) requires that all licensees be trustworthy and competent, which includes compliance with anti-discrimination legislation. In addition, the Department of State has enacted 19 NYCRR §175.17 which prohibits attempts to induce the sale or lease of residential property by making any representation regarding the entry or prospective entry into the neighborhood of a protected class.
  2. New York State Anti-Discrimination Disclosure and Notice Requirements. 19 NYCRR §175.28 requires that every real estate licensee “provides to a prospective purchaser, tenant, seller, or landlord upon first substantive contact” the “Housing and Anti-Discrimination Disclosure Form” provided by the DOS. The form must be provided for every type of property including residential, commercial, condominiums, cooperative units, vacant land etc. There are no scenarios where a licensee would be exempt form providing the form at first substantive contact.

19 NYCRR §175.29 requires a real estate broker to display and maintain at every office and branch office a notice provided by the DOS.  The notice must be displayed in the window (viewable from the sidewalk) of the brokers office (if postings are permitted on the window).  If posting in the window is not possible, the notice must be posted in the same place that the broker is required to display their license.  All websites owned and operated by a real estate licensee must also “prominently and conspicuously display on the homepage” a link to the notice provided by DOS.  Licensees are also required to display the notice and if asked, provide the consumer with a copy of the notice or the link to the notice.

PROHIBITIONS AGAINST DISCRIMINATION

  1. RACIAL DISCRIMINATION BASED ON RACE, COLOR, NATIONAL ORIGIN
  2. Federal Law.The Civil Rights Act provides, “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

The Civil Rights Act of 1866 has been interpreted by the United States Supreme Court to prohibit all discrimination in the selling and leasing of real estate, regardless of whether the discrimination arises out of private or governmental transactions. Jones vs. H. Mayer Co., 392 U.S. 409 (1968).

Fair Housing Act of 1968 (42. U.S.C. §§3601 etc. seq.). The Fair Housing Act of 1968 makes it unlawful:

  • To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
  • To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
  • To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
  • To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
  • For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin. In addition, the Fair Housing Act specifically states that it is unlawful for any one person or other entity whose business includes selling, brokering, or appraising residential real estate to discriminate against any person in making available such a transaction, or in terms or conditions of such a transaction, because of race, color or national origin (42 U.S.C. §3605).
  • To discriminate against a person with a handicap, a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available or any person associated with that person.
  • A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

Importantly, the discriminatory practices of “steering” and “blockbusting” are precluded by the Fair Housing Act. Steering generally involves the directing of a prospective purchase to a particular neighborhood or area because of the purchaser’s race, color, religion, etc. Steering also involves the refusal to show properties in a certain area to a purchaser for the same reasons. Blockbusting includes any actions used to induce panic selling of properties, and generally involves frightening home owners into selling by stating or implying that one or more protected classes will be moving into the homeowner’s neighborhood. Both of these practices are specifically prohibited by the Fair Housing Act.

Lastly, under the “Disparate impact theory” landlords are prohibited from refusing to rent a property because of the prospective tenant’s criminal record or discriminate in other ways based on the individuals Limited English Proficiency.  To assess criminal records, landlords should have a policy and procedure in place to evaluate each tenant on a case by case basis.  The only exception is for those convicted of the manufacture and distribution of a controlled substance.  For individuals with Limited English Proficiency, landlords should accommodate those individuals and not have barriers in place because of the individuals Limited English Proficiency.  Licensees should not be making determinations on behalf of a landlord as to whether the disparate impact theory s being violated without the advice of your own attorney.

  1. New York State Human Rights Law. (N.Y. Executive Law §§ 290 et. seq.).New York State Human Rights Law provides that it is an unlawful discriminatory practice for anyone to refuse to sell or to refuse to negotiate for the sale, lease or rent of housing accommodations, land or commercial space to anyone because of race, color or national origin. It is also unlawful to use any form of application for, record of, or inquiry in connection with, the purchase or prospective purchase, rental or lease of housing accommodations, land or commercial space, which expresses or intends any limitation, specification or discrimination with regard to characteristics of a protected class.

Also specifically prohibited by New York State Human Rights Law are the practices of blockbusting and steering (New York State Human Rights Law, N.Y. Executive Law §296[3-b]). Real estate brokers must not represent that a change has, will or may occur in the composition of any block, neighborhood or area, with respect to racial characteristics. Brokers must not represent that a change will or may result in undesirable consequences for the purpose of a real estate transaction. Brokers in this state also cannot misrepresent the availability of properties or otherwise deny or withhold their services for discriminatory purposes. Real estate broker boards are similarly precluded from discriminating with respect to exclusion from or expulsion from their membership.

New York State Civil Rights Law. (Article 2-A, §§18-19). Owners of publicly assisted housing accommodations in this state cannot refuse to rent or lease or otherwise deny or withhold such housing because of, nor discriminate on the basis of race, religion, color, national origin or ancestry. It is similarly unlawful for any person, such as a real estate broker, to make or to cause to be made any written or oral inquiry concerning the race of a person seeking to rent or lease any publicly-assisted housing accommodation.

New York State Public Housing Law. (Article II, §223). A broad provision in the New York State Public Housing Law prohibits discrimination against any person because of race, creed, color or national origin in relation to any public housing project subject to New York State Public Housing Law.

New York State Real Estate Brokers’ Licensing Law. As noted above, under Article 12-A of the Real Property Law, the Secretary requires that all licensees must abide by the laws of the United States and New York State in conducting their activities. Licensed real estate brokers are subject to fines, suspension or revocation of their licenses for violations of the aforementioned anti-discrimination laws.

NATIONAL ASSOCIATION OF REALTORS
CODE OF ETHICS AND STANDARDS OF PRACTICE (Article 10)

Article 10 of the NATIONAL ASSOCIATION OF REALTORS Code of Ethics prohibits the denial of equal professional services to any person because of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. In order to avoid a violation of the Code of Ethics, a REALTOR must not be a party to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.

  1. SEXUAL DISCRIMINATION
    1. Federal Law. Fair Housing Act of 1968 (42 U.S.C. §§3601 et seq.). The Federal Fair Housing Act imposes the same prohibitions on unlawful discriminatory practices in regard to sexual discrimination as it does for racial discrimination. Any aspect of a real estate-related transaction premised upon sexual discrimination will constitute an unlawful discriminatory practice.
  2. State Law. New York State Human Rights Law (N.Y. Executive Law §§290 et. seq.).New York State Human Rights Law prohibits discriminatory practices because of sexual discrimination. Similarly, it is also an unlawful discriminatory practice for any real estate board to exclude or expel any otherwise qualified individual from its membership, or to discriminate against such individual in the terms, conditions and privileges of its membership based solely on an individual’s sex, sexual orientation, gender identity or expression.

There is a limited exemption from New York State’s Human Rights Law prohibiting unlawful sexual discrimination: the rental of all rooms in a housing accommodation to individuals of the same sex.

New York State Real Estate Brokers’ License Law. Under Article 12-A of the Real Property Law, licensees are subject to the same liability for unlawful sexual discrimination as for unlawful racial discrimination.

  1. NATIONAL ASSOCIATION OF REALTORS Code of Ethics. (Article 10). The Code of Ethics prohibits denial of equal professional services to any person for reason of their sex. A REALTOR shall not be a party to any plan or agreement to discriminate against a person or persons on the basis of their sex, sexual orientation or gender identity.
  2. RELIGION OR CREED
    1. Federal Law. Fair Housing Act (42 U.S.C. §§3601 et. seq.). Unlawful discriminatory practices under the Fair Housing Act are prohibited whether based on racial, sex or religious discrimination. As with racial discrimination, the practices of steering and blockbusting are prohibited with regard to religious discrimination.
  3. State Law. New York State Human Rights Law (N.Y. Executive Law §§290 et. seq.).As with racial and sexual discrimination, the same practices are defined as unlawful for discrimination based on one’s creed.

An important exemption from unlawful discrimination under New York State Human Rights Law exists for religious organizations. Exempted from the Human Rights Law is a religious or denominational organization, or any organization operated for charitable or educational purposes, which is supervised, controlled by, or connected with a religious organization. Such organization is exempted if it limits sales or rental of housing accommodations or admission to or gives preference to persons of the same religion or denomination. Similarly, the organization is exempted if it takes such action as it calculates will promote the religious principals for which it is established or maintained.

It is also an unlawful discriminatory practice for a real estate board to discriminate in its membership based on one’s creed.

New York State Civil Rights Law. (Article 2A, §§18-19). As with racial characteristics, New York State Civil Rights Law declares it an unlawful discriminatory practice for owners of publicly assisted housing accommodations to refuse to rent or lease or otherwise deny or withhold housing because of, or to discriminate on the basis of one’s creed. As with racial discrimination, it is unlawful for any person to make or cause to be made any written or oral inquiry concerning the creed of a person seeking to rent or lease any publicly assisted housing accommodation (New York State Civil Rights Law, Article 2A, §18-c[3]).

New York State Public Housing Law. (Article 11, §223). As with racial discrimination, a broad provision in the New York State Public Housing Law prohibits discrimination against any person because of creed in relation to any public housing project subject to New York State Public Housing Law.

  1. NATIONAL ASSOCIATION OF REALTORS Code of Ethics and Standards of Practice.(Article 10). Article 10 of the NATIONAL ASSOCIATION OF REALTORS Code of Ethics prohibits the denial of equal professional services for reason of religion. A REALTOR shall not either be a party to any plan or agreement to discriminate against a person on the basis of religion.
  2. DISABILITY OR HANDICAP
    1. Federal Law. Fair Housing Act (42 U.S.C. §§3601 et. seq.).The Federal Fair Housing Act proscribes the same unlawful discriminatory practices against handicapped persons as it does against persons for reasons of race, sex and religion. However, 1988 amendments to the Fair Housing Act, effective March 13, 1989 define additional unlawful discriminatory practices with regard to handicapped individuals.

Basically, the Fair Housing Act makes it illegal to discriminate against persons with mental or physical handicaps. Excluded from the definition of “handicap” is any person who is a current controlled substance abuser. Also excluded is one who presents a current threat to the health, safety, or property of others.

Under the 1988 amendments, it is unlawful to discriminate in the sale or rental, or to otherwise deny a dwelling to any buyer or renter because of a handicap. Unlawful discrimination because of such handicap occurs whether the handicap is of the buyer or of the renter; or of a person who resides or will reside in the dwelling once it is sold, rented or made available; or of any person associated with the buyer of seller. It is also unlawful to discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling because of a handicap. Again, discrimination in this instance occurs whether the handicap is of the buyer or renter; or of a person who resides or will reside in the dwelling once it is sold, rented or made available; or of any person associated with the buyer or seller.

Discrimination against a handicapped individual also includes a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises as occupied or to be occupied by such person if such modifications may be necessary to afford such person “full enjoyment” of the premises. There exists, however, an exemption in the case of a rental, whereby the landlord may condition permission for a modification upon the renter’s agreement to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear expected. This condition is allowed to be impossible on tenants in cases where it is “reasonable” to do so.

Discrimination against a handicapped person also includes a refusal to reasonably accommodate such persons in rules, policies, practices and services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

The 1988 amendments to the Fair Housing Act also provide that all new multi-family dwellings of four of more units scheduled for first occupancy after March 31, 1991 must be designed and constructed to meet minimum accessibility standards thereby avoiding unlawful discriminatory practices against handicapped individuals. If the dwelling has one or more elevators, these minimum standards must be met in each unit. If the dwelling does not have an elevator, these standards must be met in all ground units in a dwelling. The minimum accessibility standards require that:

  1. The public use and common portions of each building must be readily accessible and usable by handicapped persons.
  2. All the doors designed to allow passage into and within all premises in such dwellings must be sufficiently wide to allow passage by handicapped persons in wheelchairs.
  3. All premises within such dwellings must contain the following adaptive features:
    1. An accessible route into and through the dwelling;
    2. Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
    3. reinforcements in bathroom walls to allow later installation of grab bars; and
    4. Usable kitchens and bathrooms allowing maneuverability by a person in a wheelchair.

Individuals with a disability are also permitted the use of a service dog, or other type of assistance animal pursuant to the Fair Housing Act and Americans with Disabilities Act.  HUD has provided a guidance document and fact sheet to assist owners and landlords in complying with the requirements of the Fair housing Act and Americans with Disabilities Act.

The Fair Housing Act prohibits municipalities and other local government entities from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against individuals with disabilities including those residing in “group home” settings. The Fair Housing Act makes it unlawful:

To utilize land use policies or actions that treat groups of persons with disabilities less favorably than groups of non-disabled persons. An example would be an ordinance prohibiting housing for persons with disabilities or a specific type of disability, such as mental illness, from locating in a particular area, while allowing other groups of unrelated individuals to live together in that area.

To take action against, or deny a permit, for a home because of the disability of individuals who live or would live there. An example would be denying a building permit for a home because it was intended to provide housing for persons with mental retardation.

To refuse to make reasonable accommodations in land use and zoning policies and procedures where such accommodations may be necessary to afford persons or groups of persons with disabilities an equal opportunity to use and enjoy housing. What constitutes a reasonable accommodation is a case-by-case determination. Not all requested modifications of rules or policies are reasonable. If a requested modification imposes an undue financial or administrative burden on a local government, or if a modification creates a fundamental alteration in a local government’s land use and zoning scheme, it is not a “reasonable” accommodation.

  1. State Law. New York State Human Rights Law (N.Y. Executive Law, §§290 et. seq.). In New York State, the Human Rights Law provides that it is an unlawful discriminatory practice for anyone to refuse to sell, rent, or lease housing accommodations, land or commercial space to anyone, or to discriminate, or to refuse to negotiate for the sale, rent or lease of such premises to anyone because of disability, blindness, hearing impairment, use of a hearing, service or guide dog or assistance animal. It is also unlawful to advertise or use any form of application for the purchase, rental or lease of housing accommodations, land or commercial space or to record or make any inquiry in connection with the prospective purchase, rental or lease of such properties, which expresses or intends any limitation, specification or discrimination with respect to a disability.

As with racial discrimination, the Human Rights Law prohibits the practices of blockbusting and steering. Discrimination by associations of licensees with regard to their membership solely on the basis of an individual’s disability is also unlawful (New York State Human Rights Law, N.Y. Executive Law §296[5][d]).

Executive Law §296(18) states that it shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right of ownership of or possession of or the right to rent or lease housing accommodations to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling, including the use of an animal as a reasonable accommodation to alleviate symptoms or effects of a disability, and including reasonable modification to common use portions of the dwelling.  Landlords should apply the federal requirements first and then the NYS requirements for a tenant or potential tenant requesting an accommodation for a service or assistance animal.  Landlords should consult with their own attorney as to whether they should grant the request.  Licensees should not be advising landlords on such matters.

New York State Civil Rights Law. (Article 2A, §§18-19). Owners of publicly assisted housing accommodations in New York State cannot refuse to rent or lease or otherwise deny or withhold such housing because of nor discriminate on the basis of a disability. It is similarly unlawful for any person, such as a real estate broker, to make or to cause to be made any written or oral inquiry concerning the handicap of a person seeking to rent or lease any publicly assisted housing accommodation.

New York State Public Housing Law. (Article 11 §§223a and 223b). Public Housing Law states that no one is to be denied occupancy or to be evicted from any dwelling solely because a person owns a hearing dog. No one who is legally blind, severely physically handicapped or who is mute can be denied occupancy or evicted from any dwelling on the ground that such person owns a dog or cat which resides with such person. However, if a health hazard results therefrom, the public health officer has jurisdiction to take the appropriate corrective measures.

  1. AGE
    1. Federal Law. Federal Age Discrimination Act of 1975 (42. U.S.C. §§6101 et. seq.).The Federal Age Discrimination Act of 1975 prohibits discrimination on the basis of age in federally financially assisted programs or activities. Consequently, discriminatory practices based on age in the sale or rental of federally assisted housing or in related actions or practices are prohibited.
  2. State Law. New York State Human Rights Law (N.Y. Executive Law §§290, et. seq.)New York State Human Rights Law prohibits discrimination in the sale or rental of housing, or in related practices, based on a person’s age.

New York State Civil Rights Law (Article 2A, §§18 – 19). Owners of publicly assisted housing accommodations in this state cannot refuse to rent or lease or otherwise deny or withhold such housing because of, nor discriminate on the basis of age. It is similarly unlawful for any person, such as a real estate broker to make or to cause to be made any written or oral inquiry concerning the age of a person seeking to rent or lease any publicly assisted housing accommodation.

In addition, a real estate board is precluded from discriminating in regard to its membership and membership practices based on a person’s age.

  1. MARITAL OR FAMILIAL STATUS
    1. Federal Law. Fair Housing Act (U.S.C. §§3601 et. seq.).The 1988 amendments to the Fair Housing Act prohibit discrimination against families with children (unlawful discrimination because of familial status). The act does not, however, preempt any state or local ordinances governing the maximum number of persons who may occupy a dwelling unit.

There is only one exemption from unlawful discrimination based on familial status. Exempted from discriminatory liability is housing for older persons. “Housing for older persons” is defined as housing:

(A) provided under any State or Federal program that the Secretary determines is specifically designed and operated to assist elderly persons (as defined in the State or Federal program); or

(B) intended for, and solely occupied by, persons 62 years of age or older; or

(C) intended and operated for occupancy by persons 55 years of age or older, and—

(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;

(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and

(iii) the housing facility or community complies with rules issued by the Secretary for verification of occupancy, which shall—

(I) provide for verification by reliable surveys and affidavits; and

(II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification.

“Housing for older persons” will not fail to qualify for the exemption if on the date of enactment of these amendments (September 13, 1988) the current residents did not satisfy the numerical age requirements of the exemption. The exemption will still apply as long as any new occupants meet the age requirements and any then unoccupied units of housing were reserved for persons meeting the age requirements of the act.

  1. State Law. New York State Human Rights Law (N.Y. Executive Law §§290 et. seq.) The New York State Human Rights Law prohibits discrimination based on marital or familial status. An exemption from this anti-discrimination law applies to housing accommodations restricted exclusively to persons 55 years of age or older.

New York State Real Property Law (Article 7, §§236-237) Under the New York State Real Property Law, it is unlawful for building, apartment house and mobile home park owners to refuse to rent, or to discriminate in renting to persons having children, or to incorporate any clause or provision in a lease requiring tenants to remain childless or to not bear children.

  1. LAWFUL SOURCE OF INCOME
  2. State Law. New York State Human Rights Law (N.Y. Executive Law §§290 et. seq.) The New York State Human Rights Law prohibits discrimination based on “lawful source of income”. The term “lawful source of income” shall include, but not be limited to, child support, alimony, foster care subsidies, income derived from social security, or any form of federal, state, or local public assistance or housing assistance including, but not limited to, section 8 vouchers, or any other form of housing assistance payment or credit whether or not such income or credit is paid or attributed directly to a landlord, and any other forms of lawful income.

The law shall not be construed to prohibit the use of criteria or qualifications of eligibility for the sale, rental, leasing or occupancy of publicly-assisted housing accommodations where such criteria or qualifications are required to comply with federal or state law, or are necessary to obtain the benefits of a federal or state program. A publicly assisted housing accommodation may include eligibility criteria in statements, advertisements, publications or applications, and may make inquiry or request information to the extent necessary to determine eligibility.

According to the NYS Division of Human Rights, landlords are prohibited from asking recipients of housing assistance for a credit report or to run a credit report.  Individuals that are required to pay a portion of the rent themselves have already been evaluated by the program and a landlord is prohibited from using a credit report to assess whether the tenant can pay their share of the rent.

Real estate service providers such as brokers and property managers should not treat rental applicants with housing assistance any different.  Real estate professionals have been found liable of discriminatory conduct by referring recipients of housing assistance to a specific employee, agent or location.