PROPERTY (Section 1)
Spring Semester 2013
Landlord/Tenant:  Discrimination in Leasing
Reading Assignment: Pages 506-517

1. A couple with two children applies for an apartment in Broadway Village, but the property manager responds "Our policy is that we do not rent to persons with children." The owner of Broadway Village (Leasing, Inc.) has adopted this policy based upon 10 years of financial data and tenant surveys (drawn from other apartment properties owned by Leasing, Inc.) demonstrating that (a) costs of premises repair are 14% higher in apartments with children than in apartments without children; (b) costs of property and liability insurance are 20% higher when the apartment residents include families with children; (c) 57% of all noise-related complaints in other apartment projects involve children.  Further, all of the apartments in Broadway Village are 2-story apartments with balconies, and Leasing, Inc. fears that the balconies are not sufficiently safe for children (they fear that children might slip through balcony railings and fall). The couple sues alleging illegal discrimination in violation of federal and state laws governing real estate leasing. What arguments would you fashion on behalf of the couple? On behalf of Leasing, Inc. How would the court decide the case and why?

2. Suppose that a law student applies for an apartment in Broadway Village, only to be told by the property manager: "Sorry, we don't rent to law students. They constantly complain because we don't sign 9-month leases, and they know too much about their rights and they cause trouble trying to intimidate our employees by threatening to file lawsuits." The student wants to know whether she has a basis for claiming illegal discrimination. What result and why?

3. In the Jancik case, Mr. Jancik ends up facing substantial liability for fines, damages, and attorney fees as a result of the activities of "testers" — persons that were posing as potential tenants, but weren't really looking for apartments. Should the law operate this way (potentially setting a "trap" for landlords like Jancik)? Why or why not?

4. Assume the Hansens own a duplex. They live in one side, and rent out the other. Mr. Hansen runs the following ad in the newspaper: "2 bed, 2 bath, A/C, garage, $500/mo. incl. utils." Two couples apply for the vacant duplex. One couple has 2 children, the other is African-American. Hansen doesn't want children or a black couple living next door to him. So Hansen lies, and tells both couples that he has already rented the duplex to someone else, when in fact he has not. Does Hansen have any potential liability under federal fair housing laws? Look carefully at the language of the Fair Housing Act.

5. Assume the Hansens own a duplex. They live in one side, and rent out the other. Mr. Hansen runs the following ad in the newspaper: "2 bed, 2 bath, A/C, garage, $500/mo. incl. utils. Perfect for mature individual or couple." They want to know whether the ad presents any potential legal problems. What advice would you give them?

6. Assume the Hansens post the following message on Craigslist: "2 bed, 2 bath, A/C, garage, $500/month, NO BLACKS, ASIANS, OR NON-ENGLISH SPEAKERS." A local housing advocacy group sues the Hansens and Craigslist. Craigslist moves to dismiss the complaint based on the Communications Decency Act, which provides [47 U.S.C. § 230]:

(a) Findings. The Congress finds the following: (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. (4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation. (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

(b) Policy. It is the policy of the United States—(1) to promote the continued development of the Internet and other interactive computer services and other interactive media; (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; (4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

(c) Protection for “good samaritan” blocking and screening of offensive material.

(1) Treatment of publisher or speaker. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of: (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Should the court dismiss the complaint against Craigslist? Should Craigslist be treated differently than the St. Louis Post-Dispatch? In the digital information age, should the Fair Housing Act even bother to try to regulate real estate-related advertising?