Federal fair housing law does not explicitly prohibit criminal background screening. However, the U.S. Department of Housing and Urban Development (HUD) released guidance and a memo about how the Fair Housing Act applies to housing policies with regard to criminal background checks. HUD recognizes the racial and ethnic disparities in the criminal legal system, including disproportionate and unequal rates of arrests and convictions, and harsher sentencing of Black and Latinx individuals in particular. The result of this disparity is disproportionate harm to members of these protected classes.
HUD’s 2022 Memo regarding its 2016 Guidance on this topic recommends private housing providers not use criminal history to screen tenants for housing. Criminal history is not a good predictor of housing success. Most housing providers are not required by law to exclude persons with criminal histories as tenants and can rely instead on other screening criteria that more closely relate to whether an applicant or resident would be a good tenant, such as: ability to pay rent, prior rental history, and personal references. If conducting a criminal record screening, HUD has issued guidance on applying Fair Housing Act standards to the use of criminal records screening in housing related transactions. This guidance prohibits landlords from: • Denying housing based on arrest records. • Placing blanket bans on renting to anyone with a criminal history. Blanket bans are bans that apply to or affect all or the majority of a given class of people. • Conducting background checks inconsistently, performing them on some and not others based on stereotypes or fear. Further, a landlord must: • Consider individuals on a case-by-case basis and evaluate the nature and severity of the crime and consider the length of time that has passed since that crime was committed. • Make a determination based on facts and evidence, and not a perceived threat. A person can be denied based on their criminal record, legally, if their recent criminal record makes them dangerous and a risk to other tenants or neighbors. The denial must be based on reliable evidence and not be hypothetical or speculative. If challenged as a fair housing violation, a housing provider must be able to: • Provide evidence proving that the housing provider has substantial, legitimate, nondiscriminatory interest supporting the housing denial. • Show that the housing policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety/property and criminal conduct that does not. Under federal regulations, Public Housing Authorities must reject an applicant if the person has a lifetime registration requirement relating to their conviction for a sexually-oriented offense in any state and applicants convicted of manufacturing methamphetamine on federally-assisted property. What does criminal record discrimination in housing look like? Examples: • A housing provider will not rent to a tenant because they served time in prison for drug possession 25 years ago but have not been in trouble with the law since. • A housing provider automatically denies any applications where the potential renter has checked the box on the rental application inquiring if they have ever been convicted of a felony. • A housing provider uses the person’s criminal record to deny housing as a means to discriminate on another basis, such as the person’s disability, family status, or sexual orientation. • An individual has a criminal record due to a past drug or alcohol addiction but has since successfully completed a rehabilitation program. * Being in recovery from alcohol and/or drug addiction is considered a disability under the Fair Housing Amendments Act of 1988 which prohibits discrimination based on disability and includes additional protections such as the right to reasonable accommodations and reasonable modifications. From FAIR HOUSING FOR PEOPLE WITH A CRIMINAL RECORD: A DIGITAL TOOLKIT | FAIR HOUSING CENTER FOR RIGHTS & RESEARCH
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Why should a REALTORĀ® be concerned with whether the Seller is a party to a pending divorce?10/17/2024 Whenever a party with title to or an interest in property is involved in a divorce or dissolution of marriage proceedings, it is necessary to determine the legal effect of the proceedings on the title to the property.
WHY is that? Because most real estate (especially a “marital residence”) will be considered a “marital asset” in determining the division of assets in a divorce. AND …. One spouse may actually want to keep the home or property. Selling the property and dividing the proceeds will not always be the final decree regarding the property. The actual property may be awarded to one or the other. Even the spouse who is NOT an owner of record – who is not on title to the property – may well have an equitable interest in the property, based upon the equitable division of assets. Satisfying that interest and properly conveying title to the property will likely require a signature or other cooperation even from a spouse who is not on the title to the property. VERY IMPORTANT - Improper handling of a property which is the subject of a divorce proceeding can result in the invalidation of a sale and subject the parties to significant liability; and – in some cases – the Court can order that the title to the property revert back to one or other of the selling spouses. It could be taken from the Buyer. Agent Pro Tip Please ask ALL Sellers if they are in a pending divorce or whether a divorce could be filed during your Seller Engagement term. Even two seemingly happy Sellers, who both work well with you (and each other) during the sale process, may be going through a divorce and never tell you about it unless you ASK. Sometimes one side of the divorce proceeding will file a Lis Pendens in the public real estate records indicating that parties’ claim to the property or proceeds of sale. BUT there is not always a Lis Pendens filed – so without knowledge from your Seller that a divorce is proceeding, the Closing Attorney may never receive this important information. But if a Divorce is Public Record, won’t you find it during a title exam anyway? NOPE. Not unless the attorney is tipped off or directed to “go look” for the Divorce decree in the Superior Court Civil complaint filings. This is an entirely separate index, database and recording forum from the real estate records. Civil Complaint record searches are not a part of a title exam under the Georgia Title Standards. Also – the divorce could have been filed in any one of Georgia’s 159 counties. We cannot search them all! And finally – the parties may be “in the middle of a divorce” even if there is no formal public record filing yet. They could still be in the pre-filing stages. To determine whether, and HOW, a decree of divorce or dissolution of marriage will impact title to property and closing, we must ascertain: 1. The validity of the decree: a. The court must have jurisdiction over the subject matter of the action under state law b. Did the court have jurisdiction over the parties to the action? We must be satisfied that the spouses make a personal appearance or waiver or be personally served in the divorce. c. Does the court have jurisdiction over the land? We cannot rely upon a divorce decree divesting and vesting title if the land is not located in the state where the court is located (an out of state divorce where GA property is involved) d. Is the decree final? Is there any possibility of appeal or review? Do not rely upon decrees which are not final unless the parties agree to the substance of the decree. 2. The nature of the interest held in the land: a. Title is held by one spouse only b. Title is held by both spouses as joint tenants c. Title is held by both spouses as tenants in common d. Title is held by both spouses as community property [not in GA]. 3. Does the decree itself effectively terminate the interest in the land of one of the parties by adjudicating it to the other? If the decree sufficiently vests title in the other spouse, a certified copy of the order must be filed in the clerk's or recorder's office in each state to constitute constructive notice. NOTE: Most Divorce Decrees do not effectively pass (vest) title (within the Decree) from one spouse to the other. 4. Whether the decree orders one of the parties to convey that party’s interest in the land to the other a. If the decree does not sufficiently vest title in one spouse by other provisions of the decree, we require a deed from the other spouse if the decree orders a conveyance (IE, “wife shall quitclaim her interest in the marital residence to the husband”) Blog Source: Hartman Law Notices: The GAR Contract provides that all notices, including but not limited to offers, counteroffers, amendments, demands, terminations, and all other notices must be in writing, legible and signed by the person giving notice (buyer or seller). In the event of a dispute regarding notice, the burden shall be on the party giving notice to prove delivery. The GAR Contracts provide that notice may only be delivered by one of the following methods:
(a) In person; (b) by courier, an overnight delivery service, or certified or registered U.S. mail; (c) or by email or facsimile (FAX). Although many real estate licensees and brokers text information to the other party, it is important to remember that text messages are not an acceptable form of giving notice under the GAR contracts. Delivery of Notice: The GAR Contract also provides for when the notice is considered delivered and received. A notice to a party shall be deemed to have been delivered and received upon the earliest of the following to occur: (1,) The actual receipt of written notice by a party; (2) in the case of delivery by a delivery service, when the written notice is delivered to an address of the party set forth in the contract provided that a record of the delivery is created (i.e., return receipt requested); or (3) in the case of delivery electronically, on the date and time the written notice is electronically sent to an email address or fax number of a party that is included in the contract. To be effective, notice must go to the email address, fax or address included in the contract! Notice via Email: Most real estate contracts, including the GAR Contracts, now permit notices to be sent by email. The GAR Contract goes further and provides that notices sent by email are deemed received when sent, provided they are sent to an email address provided in the contract or subsequently provided via another permissible method of notice. If an email address is neither provided on the signature page of the GAR Contract (for brokers or agents or unrepresented buyers or sellers) nor subsequently provided following the notice procedures in the agreement, then notice via email will not be deemed a valid form of delivery of notice to that party. Notice to an Unrepresented Party: Under the GAR Contract, a real estate licensee working with an unrepresented customer cannot normally receive email notice on behalf of the customer. Notice must be sent directly to the customer to the email or fax number included in the contract. Notice to the Broker or Agent is Generally Notice to the Client: The GAR Contract provides that notice to the broker or agent shall be deemed notice to the party represented by the broker as a client, provided they are sent to an email address or fax provided in the contract or subsequently provided via another permissible method of notice. |
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