February 9th, 2013 by Joseph William Singer
The Department of Housing & Urban Development (HUD) has issued final regulations defining the standards to make a claim that a neutral policy has a disparate impact on a protected group in a manner that constitutes unlawful discrimination under the federal Fair Housing Act, 42 U.S.C. §3601 et seq. The regulations are at 24 C.F.R. 100.500 and can be found here. The rule affirms that disparate impact claims are available under the Fair Housing Act and identifies an approach to proving them to respond to the variation that exists among Circuits on what the legal test is for disparate impact in this area. Here is the test:
1. Plaintiff must show a discriminatory effect either because defendant’s policies or actions result in a disparate impact on a protected group or because those policies or actions promote segregation.
2. Defendant then has the burden to showthat its practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest, and that that interest cannot be served by another practice that has a less discriminatory effect.
3. Plaintiff can rebut defendant’s argument by showing that the defendant’s interest is not substantial, legitimate, or nondiscriminatory or that defendant’s interest can be achieved by a practice that has a less discriminatory effect.
Posted in Antidiscrimination law, Fair Housing Act, Real estate transactions | Comments Off on HUD issues final regulations defining disparate impact claims under the Fair Housing Act
February 7th, 2013 by Joseph William Singer
When a government took 14 units from a homeowners association by eminent domain, the remaining owners lost the dues and assessments that those owners would have contributed to the homeowners association. However, the Fifth Circuit has ruled that those lost assessments represent mere “contractual rights” that are not compensable under the takings clause as lost property rights even though they ran with the land. United States v. 0.073 Acres of Land, — F.3d —, 2013 WL 322242 (5th Cir. 2013). The court looked to Louisiana law to determine whether the assessments should be considered to be “property” rights and found that they were. However, it interpreted the case of United States v. General Motors Corp., 323 U.S. 373 (1945) to mean that loss of future profits from land is not compensable. The court acknowledged that it was adopting a minority view and that most courts have held that covenants are property within the meaning of the takings clause.
Posted in Estates & future interests, Servitudes, Takings | Comments Off on Homeowners’ Association dues lost because the property was taken by eminent domain are held not to be compensable under the takings clause