On January 9, 1995, the U.S. Department of Housing and Urban Development (HUD) released a memorandum providing guidance on permissible advertisements under Section 804(c) of the Fair Housing Act [can be found at https://www.hud.gov/sites/documents/doc_7784.pdf]. Section 804(c) states that it is unlawful “[t]o 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.” The guidance was internal guidance to staff of HUD, not guidance to the brokers or real estate salespersons of the world. It provided the rules that HUD staff could follow when they reviewed a potential fair housing complaint. In other words, it contains many of the rules that the fair housing judge uses to assess violations of the fair housing act. It is one of the few federal government sources that provides specificity and examples of complaint language, with a limited amount of legalese. HUD still refers real estate professionals to the document, so it is relatively safe to assume that the majority of the document remains relevant, despite being 30 years old.
Brokers are advised to review the memorandum, as it has relatively comprehensive language about terms that HUD finds actionable and scenarios that are not actionable. Terms like “apartment complex with chapel,” or “Happy Easter” or statements like “walking distance to bus-stop” are not considered violations of the act per the guidance. In general, much of the memorandum can be distilled down to the idea that the advertisement must be facially neutral, nondiscriminatory, and descriptive. Advertisements should not express a preference or a prohibition, but can simply state nondiscriminatory facts. Terms that are commonplace in the marketplace as physical descriptions of the property are not going to be considered discriminatory, such as “mother-in-law suite” and “master bedroom.” While HUD may not find the phrase actionable or discriminatory under its guidance, many brokers and many local associations nationwide have begun pruning the language that is considered socially unacceptable. The Houston Association of REALTROS®, for example, began encouraging its members to use the term “primary bedroom” in place of “master bedroom” on its MLS system around June of 2020. As with many things in the federal government, the governing bodies that enforce the rules tend to lag behind the social movements that ask for expanded understanding of the laws and acts. Just because a statement may not get you into hot water with HUD does not mean the statement will be acceptable in your area. Use your judgement and err on the side of nondiscrimination when questioning the suitability of an advertising term.