Real Estate E&O Claims Spotlight: Be Aware of Fair Housing Testers

Potential renters and buyers are not always what they appear to be. Fair Housing Testers are individuals who pose as prospective clients in order to investigate potential discrimination in housing, particularly as it pertains to the Fair Housing Act, which prohibits denying housing based on race, color, national origin, ancestry, religion, sex, sexual orientation, disability, family status, or use of public assistance.

If a Fair Housing Tester uncovers evidence of discrimination, this could lead to a very costly claim for the property manager or brokerage. Let’s take a look at one of our recent claims relating to this subject.

The Claim

In May 2019, a fair housing tester (referred to as “Tester”) and father of two found an advertisement for a rental of one of the Properties. One key statement in the advertisement was: “…great for a single person or a couple… This property has a restriction of no one under 18.”

Because this statement was indicative of a violation of the Fair Housing Act, the Tester started investigating further. He confirmed that the Property was not located in a community that was listed as a 55-and-over community.

The Tester then posed as a potential renter and inquired over the phone about whether the Property was available. After the Listing Agent confirmed that the property was available, the Tester brought up the listing and asked whether families with children could rent the Property. The Listing Agent stated that:

  1. The Property is not in a 55-and-over-community,
  2. The Association does not allow residents under the age of 18, and
  3. Children were permitted to visit for up to seven days at a time.

The Listing Agent then mentioned that another residence in the same building was available for rent, with different lease terms. However, when prompted, he confirmed that children could not reside at this second property because of the Association’s policies.

As a result of this exchange, the Tester filed a lawsuit against the Real Estate Agency on August 27, 2019, citing a violation of the Fair Housing Act as well as emotional distress and other damages. He asks that the Agency award punitive and compensatory damages for the emotional distress and insult injury caused by the discrimination, as well as the Tester’s costs, attorney fees, and any further relief the Court deems just and proper.

Lessons to Learn from This Claim

Unfortunately, every real estate agent and broker does need to be prepared for the fact that their client could be a fair housing or another form of tester. Though this is not a common occurrence, it is something that can and does happen, and being found guilty of violations could lead to expensive claims on your end. It is absolutely crucial that you do not engage in discriminatory housing practices, or use language in listings, postings, or other communications that could be indicative of discrimination.

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