Is This Discrimination, or a Disclosure Issue?
Carol Culkin wrote a great post regarding Title VIII of the Civil Rights Act which prevents discrimination in the Sale, Rental and Financing of dwellings.
The situation Carol describes is this:
- Carol has a lower floor condo listing
- A buyers agent who had shown the condo, called and said his "Buyer would like to know who lives upstairs ie., single, couple, any kids?"
Carol believes, and other commenter's agreed, that it is familial discrimination if she answers.
I BELIEVE IT'S DISCLOSURE OF A MATERIAL FACT ISSUE
- Buyer may not wish to live below a unit housing family with kids; or below partying single adults
- The discrimination laws are against refusing to rent or sell to someone based on any of the criteria, in this case the discussion is familial status.
- The laws do not apply to Buyers who may not wish to buy into a specific unit for their personal reasons.
- Normally the buyer is to do their own demographic research. However, this specific request for information from the seller as to who lives upstairs, it's reasonable for buyers agent to ask listing agent the question.
- Listing agent either knows the answer, or can get it quickly from the seller.
- Buyer was doing their due diligence prior to making offer. They wanted to know if there was a singe person in the upper unit; a couple; or people with kids.
- This was a material fact the buyer required to help make a buying decision.
- Listing agent has the duty to disclose any material fact that s/he is aware of. S/he does not have to do any research to find it, except in this case to ask the Seller.
Code Of Ethics Article 10
Articles 10-1 and 10-2 indicate that a Realtor may provide demographic information if needed to assist with or complete a transaction so long as the information is obtained from a reliable source. (Paraphrased)
ARIZONA SELLER DISCLOSURE (SPDS)
..."If the buyer asks you about an aspect of the property, you have a duty to disclose the information, regardless of whether or not you consider the information material..."
While familial status of an upstairs unit is certainly not a required initial disclosure of the seller, once it becomes a material fact and the buyer asks the question, then I believe agent and seller is required to disclose.
Therefore, I see this as a disclosure of material fact issue; not a discrimination issue.
My broker's opinion was the same as mine.
In an article published in the AZ Journal of Real Estate & Business, August 2010, attorney Calvin J. Platten writes:
..."my strongest piece of advice for any agent whether he or she is representing the buyer or the seller is to put yourself in the place of the buyer. If a piece of information in your possession regarding a property is something you would want to know if you were the one purchasing the property then you should disclose it"...
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