Forty three years ago today, President Lyndon Baines Johnson signed into law the Civil Rights Act of 1968 which included Title VIII, the Fair Housing Act which, as described on HUD’s website, “prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18), and handicap (disability).“This morning, during a press conference, the preliminary results were released of a year-long investigation by the National Fair Housing Alliance (NFHA) into the way that banks, lenders and mortgage servicers maintain, or fail to maintain, properties they own following a foreclosure and if these practices may be a violation of Fair Housing Laws. The interesting thing about this, is this is the first time I have heard of Fair Housing Laws being applied in this manner and I think raises some very good questions.

Do lenders give preferential treatment to REO’s in white neighborhoods?

During the press conference the NFHA described their investigation which they targeted REO’s in a few markets and evaluated the condition and maintenance of REO’s in those areas and whether there was any indication that REO’s in predominately black or latino areas were being handled differently than REO’s in predominately white areas.

The NFHA presented photos of REO’s in both white and black neighborhoods showing that the REO’s in the black areas were unkempt and in poor condition while the homes in white neighborhoods were much better kept and in better condition. In the pictures of REO’s in black areas was a house that had burned and been unattended by the lender for nearly a year.

Is it the crime rate and not discrimination?

I asked Shanna Smith, the President and CEO of the NFHA, if their investigation took into consideration the crime rates of the targeted areas and whether or not the condition of the homes, as well as the lenders lack of willingness to invest money to improve them, could be related to crime rate and concern of theft and have nothing to do with the racial makeup of the neighborhood? Ms. Smith said their evaluation of REO’s did in fact take this into account, that in rating the condition of the REO homes they did so relative to the homes around them. She acknowledged that if crime is an issue that a lender may not be willing to invest money in the home but still has an obligation to secure the property and do basic maintenance such as keeping the lawn mowed, doors locked, etc. Smith said during their investigation they found many REO’s in black areas that weren’t even locked up or secure, while the REO’s in white areas were.

How the homes were evaluated…

In evaluating homes for the investigation the NFHA said they took the following things into account:

• Curb Appeal
  • Accumulated mail
  • Trash
  • Overgrown or dead grass/shrubbery and invasive plants
• Structure
  • Unsecured/broken doors, locks, windows, damaged roof, fence, deck holes, wood rot
• Paint/Siding
  • Graffiti, severe peeling/chipped paint
  • Damaged siding
• Gutters
  • Missing, out of place, broken, hanging obstructed
• Water Damage
  • Presence of mod, erosion
• Signage
  • Trespass/warning signs
  • “Bank-Owned” signs
  • Broken/discarded signs
  • Occupancy by unauthorized individuals

Is not taking care of a house really discrimination?

One question that was going through my head during the news conference is, even if what they say is true, is it a violation of Fair Housing Laws to not maintain a property or be careless about it? Addressing this issue was Steve Dane, an attorney with Relman, Dane & Colfax, PLLC, who said that he believed that the actions cited were in fact a violation of this law because they “discouraged potential buyers from purchasing or renting homes in minority neighborhoods.”

When I spoke with Shanna Smith on this issue, in terms of applying the Fair Housing Laws in this manner, she did say it was “cutting edge” but did feel that it was necessary to protect the rights of minorities and the communities affected by REO’s.

The problem may lie with asset managers and real estate agents as well..

During the conference, as well as in my conversation with her afterward, Ms. Smith referred to some instances where the lender, when presented with photos of their REO’s, were surprised to find out the condition they were in and pointed out that they have a local asset manager, or agent, that is required to check the homes once a week. It seems to be the norm in the industry to require such periodic inspections of REO’s by the agent or manager so this would indicate that perhaps these folks may be to blame instead of, or in addition to the lender in some instances.

When addressing this issue Ms. Smith stated that, while her focus of the investigation started with the people at the top of the ladder (the lenders) that didn’t mean that, by the time things are said and done, that here organization may not end up filing suit against people on the “lower rungs of the ladder” (agents, property and asset managers, etc) if their investigation points to them.

The investigation is on-going – the Feds are listening…

Shanna Smith said this is an ongoing investigation and more information will come out in the future as a result. She also said they have been in contact with the Department of Justice and they were interested in the findings of the investigation. Ms. Smith said there is also and educational component that will come out of this, in terms of a webinar they are going to release around May that will educate brokers and agents that handle REO properties.

If ultimately someone is found to be in violation of the Fair Housing Act because of their treatment of, or lack of maintenance of, properties in minority neighborhoods this will be an interesting precedent that will likely lead to more suits.

For the complete report click here.