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Fair housing, discrimination, and conflicts of law in land disputes

Federal fair housing law bars discrimination in the sale and rental of housing on the basis of several protected characteristics, with carefully defined exemptions and a wholly separate, older civil rights statute that reaches even further on the specific ground of race. The Fair Housing Act bars refusing to sell or rent, or discriminating in the terms or conditions of a sale or rental, because of race, color, religion, sex, familial status, or national origin, and it separately bars discrimination because of disability, including a refusal to make reasonable accommodations or to permit reasonable modifications a disabled tenant needs to use and enjoy the dwelling. The Act exempts an owner of no more than three single-family homes who sells or rents one without using a broker and without a discriminatory advertisement, and it separately exempts owner-occupied buildings of four units or fewer, though neither exemption ever excuses discriminatory advertising or notices.

TESTED STATUSCurrent MBE, MEE where applicable, and NextGen foundational doctrine
01 · COMPLETE FRAMEWORK

Black-letter propositions

  1. 01

    The Fair Housing Act makes it unlawful to refuse to sell or rent, or to discriminate in terms, conditions or services, because of race, color, religion, sex, familial status or national origin, and separately bars discrimination because of handicap; it also bars discriminatory notices and advertisements, false statements that a dwelling is unavailable, and blockbusting representations about entry of a protected group into a neighborhood.

  2. 02

    Discrimination because of handicap includes refusing reasonable accommodations in rules or policies that a handicapped person needs to use and enjoy a dwelling, and refusing to allow reasonable modifications at the person's expense, though a landlord may condition permission on restoring the interior at the end of a rental.

  3. 03

    The Act exempts a single-family house sold or rented by an owner of no more than three such houses without a broker and without a discriminatory advertisement, and rooms or units in an owner-occupied building of no more than four units; the exemptions do not reach the prohibition on discriminatory notices and advertisements.

  4. 04

    Religious organizations and nonprofits they control may limit noncommercial dwellings to members of their religion unless membership is restricted by race, color or national origin, and private clubs not open to the public may limit lodging to members.

  5. 05

    Section 1982 of Title 42, which gives all citizens the same right to purchase, lease, sell, hold and convey property as white citizens, bars all racial discrimination, private as well as public, in the sale or rental of property (Jones v. Alfred H. Mayer Co.), so a Fair Housing Act exemption does not shield racial discrimination.

  6. 06

    Shelley v. Kraemer held that judicial enforcement of a racially restrictive covenant by state courts is state action that denies equal protection, though a private covenant itself is not unconstitutional.

  7. 07

    Under Fall v. Eastin, the disposition of land is governed by the law of the state where the land sits, and a court of another state, acting on the person, may order a party to convey land but its decree cannot itself transfer title outside its jurisdiction.

02 · ORDER OF ANALYSIS

Use this attack sequence under time

1

Frame the issue

Identify the protected class and the act complained of: refusal, terms, advertisement, false unavailability, or blockbusting.

2

Resolve the next checkpoint

Check the statutory exemptions and note that they do not cover advertising and do not affect Section 1982 as to race.

3

Resolve the next checkpoint

For handicap, ask whether the request is a reasonable accommodation or modification and who pays.

4

Finish the conclusion

For land in another state, choose the law of the situs for title and note what an out-of-state decree can and cannot do.

03 · DISTINCTIONS THAT CREATE POINTS

Common wrong turns

  • The owner-occupied and single-family exemptions do not permit a discriminatory advertisement.
  • A landlord exempt from the Fair Housing Act may still violate Section 1982 by refusing to rent because of race.
  • A court order from another state is enforced against the person; it does not by itself convey title to land located elsewhere.
04 · WORKED APPLICATION

Worked example

An owner who lives in a four-unit building she owns refuses to rent a vacant unit to a family because of the family's religion, without using a broker or advertising.

Model analysis

The Fair Housing Act exempts rooms or units in an owner-occupied building of no more than four units, so the refusal is outside sections 3604(a) and (b). Section 1982 addresses only race, so it would not reach a refusal based on religion, and the exemption would apply unless state or local law says otherwise.

05 · CLOSED-BOOK RETRIEVAL

Practice this topic

06 · FROM THE PRIMARY TEXT

The Fair Housing Act

Section 3604 of Title 42 makes it unlawful to refuse to sell or rent after a bona fide offer, or otherwise deny a dwelling, because of race, color, religion, sex, familial status or national origin, and to discriminate in terms, conditions, privileges or services. It bars notices and advertisements indicating a preference or limitation on those grounds, misrepresenting that a dwelling is unavailable, and inducing sales or rentals for profit by representations about the entry of a protected group into a neighborhood. Subsection (f) bars discrimination because of a handicap and defines it to include refusing reasonable modifications at the person's expense, with permission that may be conditioned on restoring the interior, and refusing reasonable accommodations in rules, policies, practices or services.

Section 3603(b) exempts a single-family house sold or rented by a private owner who owns no more than three such houses, if sold or rented without a broker and without a discriminatory advertisement, and rooms or units in a dwelling of no more than four families if the owner maintains and occupies one of the units as a residence. It states that section 3604(c), on notices and advertisements, still applies. Section 3607(a) lets religious organizations and nonprofits they control limit the sale, rental or occupancy of dwellings they own for other than a commercial purpose to persons of the same religion, unless membership is restricted because of race, color or national origin.

07 · FROM THE PRIMARY TEXT

Section 1982 and restrictive covenants

In Jones v. Alfred H. Mayer Co., the Supreme Court held that section 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute is a valid exercise of the power to enforce the Thirteenth Amendment. The Court stressed that section 1982 is not a comprehensive open housing law, unlike Title VIII of the Civil Rights Act of 1968, which was enacted the same year.

In Shelley v. Kraemer, the Court held that in granting judicial enforcement of racially restrictive covenants, the state courts denied the petitioners the equal protection of the laws, so the state courts' action could not stand. The holding concerns judicial enforcement by the state, and the Court did not hold private agreements unlawful in themselves.

08 · FROM THE PRIMARY TEXT

Conflict of laws for land

Fall v. Eastin quotes the rule that the disposition of real estate, whether by deed, descent or any other mode, is governed by the law of the state where the land is situated. It also recognizes that a court of equity, acting in personam, may decree the conveyance of land in another state and enforce the decree by process against the defendant, but neither the decree itself nor any conveyance under it, except by the person in whom the title is vested, operates beyond the jurisdiction of the court.

The practical result is that a court orders a defendant to sign a deed, and the deed is then effective under the law of the situs. A judgment of another state cannot alone change the record title.

09 · QUICK ANSWERS

Frequently asked questions

What is the controlling rule for fair housing, discrimination, and conflicts of law in land disputes?+

Identify the statute that applies, note the exemption and its limits, then apply the accommodation or advertising rule, and separate Section 1982 and constitutional theories.

Who is protected by the federal Fair Housing Act?+

People protected by race, color, religion, sex, familial status, national origin and handicap, under 42 U.S.C. section 3604.

Does the single-family exemption allow discriminatory advertising?+

No. Section 3603(b) states that the exemption does not apply to section 3604(c), which bars discriminatory notices and advertisements.

Does the Fair Housing Act exemption protect racial discrimination by a private owner?+

Not from 42 U.S.C. section 1982, which the Supreme Court held in Jones v. Mayer bars all racial discrimination in the sale or rental of property.

What did Shelley v. Kraemer hold?+

That state court enforcement of racially restrictive covenants denies equal protection, so the courts' action could not stand.

Which state's law governs the transfer of land?+

The law of the state where the land is situated, according to Fall v. Eastin, so an out-of-state decree can order a conveyance but cannot itself transfer title outside its own jurisdiction.

SOURCE DESK

Primary sources

42 U.S.C. section 3604, Cornell LII↗42 U.S.C. section 3603, Cornell LII↗42 U.S.C. section 3607, Cornell LII↗42 U.S.C. section 1982, Cornell LII↗Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), Cornell LII↗Shelley v. Kraemer, 334 U.S. 1 (1948), Cornell LII↗Fall v. Eastin, 215 U.S. 1 (1909), Cornell LII↗

Governing text for fair housing, discrimination, and conflicts of law in land disputes

Uniform property acts (Uniform Law Commission) ↗