LEGAL/LEGISLATIVE UPDATE – AUGUST 5, 2019

Published on: August 5, 2019

STILL FALLING

Existing home sales declined again in June – falling 2.2 percent below the year-ago pace, despite lower interest rates and wage gains fueled by a strong labor market. New home sales recovered from a dismal May, primarily because strong sales in the West offset weakness in other regions, pushing the national total 7 percent above the June 2018 level.

Industry executives found nothing reassuring to say about existing home sales, which have now declined year over year for 16 consecutive months. Affordability is the primary culprit; 88 consecutive months of price increases have pushed the national median to $285,700 – an all-time high, according to the National Association of Realtors. Housing inventories, meanwhile, remain sparse, especially at the entry-level, where demand has been strong.

Despite “exceptionally low” mortgage rates, solid employment growth and “a record high” net worth for Americans, “home sales are running at a pace similar to 2015 levels,” Lawrence Yun, the NAR’s chief economist, told DS News. “Either a strong pent-up demand will show in the upcoming months,” he predicted, or it will become clear that “a lack of confidence is keeping buyers from this major expenditure. It’s too soon to know how much of a pullback is related to the reduction in the homeowner tax incentive,” he added.

DISPARATE MAINTENANCE

A federal district court judge ruled that a disparate impact suit against Bank of America can proceed. The suit, filed by a coalition of housing advocacy groups led by the National Fair Housing Alliance, accuses the bank and Safeguard Properties Management of maintaining foreclosed properties in minority communities at a lower standard than applied to properties in higher-income, non-minority neighborhoods. The housing groups based their suit on a review of more than 1,600 foreclosed homes in white, African-American and Latino neighborhoods in 37 metropolitan areas, presenting photos showing overgrown yards and damaged exteriors in minority neighborhoods, and well-maintained yards and properties in non-minority areas. Rejecting Bank of America’s motion to dismiss the case, the judge ruled that “the facts pled raise a reasonable inference that the defendants violated anti-discrimination provisions of the Fair Housing Act. The threshold and legal arguments for dismissal are not persuasive,” he said.

DATA BREACH PENALTIES

The data breach that exposed the Social Security numbers and other personal information of nearly half the U.S. population is going to cost Equifax more than $700 million in damages, under an agreement negotiated with the Federal Trade Commission, the Consumer Financial Protection Bureau (CFPB) and the attorneys general of 48 states. Regulators accused the giant credit reporting company of failing to provide adequate protections for the consumer data it collects and stores, and failing to respond appropriately to the breach when it was discovered. The settlement allocates up to $425 million to provide credit monitoring services for affected consumers, $175 million in penalties to the states and $100 million in penalties to the CFPB. The agreement also requires Equifax to overhaul its security systems and protocols.

The Equifax breach “underscores the evolving cyber security threats confronting both private and government computer systems and actions they must take to shield the personal information of consumers,” CFPB Director Kathleen Kraninger said in a press statement. “Too much is at stake for the financial security of the American people to make these protections anything less than a top priority,” she added.

The $700 million Equifax settlement sounds massive, unless you are Facebook, which has agreed to pay $5.1 billion in fines to the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC) to resolve allegations that Facebook gave Cambridge Analytica access to the personal information of 87 million Facebook users without their permission, and then misrepresented the seriousness of the breach to investors.

“Facebook betrayed the trust of its users and deceived them about their ability to control their personal information,” FTC Chairman Joe Simons said in a statement. “The enormity of this penalty resets the baseline for privacy cases and serves as an important deterrent for future violations,” he added.

SEC officials said Facebook intentionally downplayed the issue, telling investors that the risk of misusing consumer data was merely “hypothetical” when company executives were aware that Cambridge Analytica had, in fact, misused the information.

“Public companies must accurately describe the material risks to their business,” Stephanie Avakian, co-director of the SEC’s Enforcement Division, said “and they must have procedures in place to make accurate disclosures about material business risks.”

FOREIGN INVESTMENT

Foreign investors are losing their appetite for U.S. housing. The National Association of Realtors (NAR) reports that foreign buyers purchased 183,000 residential properties valued at $77.9 billion, between April 2018 and March 2019, compared with 266,800 properties costing $121 billion in the previous 12-month period. The NAR’s chief economist, Lawrence Yun, attributed the decline to “a confluence of factors,” including slower worldwide economic growth, a tight inventory of homes for sale, and a stronger U.S. dollar. But even given those conditions, Yun said the extent of the decline as “quite striking, implying less confidence in owning a property in the U.S.”

The decline in Chinese investment was particularly dramatic, at $13.4 billion, down 56 percent year-over-year. “We call it the Trump effect,” Carrie Law, CEO of Juwai.com, told CNBC. “[It’s] a combination of anti-Chinese political rhetoric, a clampdown on vis processing, and of course tariffs.” The net result, she said, is to “undercut some of the primary drivers of Chinese demand for U.S. property,” including the assumption that U.S. property “is a safe investment.”

MARIJUANA GROWTH

The trend to legalize marijuana continues. Although only one state (Illinois) joined the 10 (plus the District of Columbia) that have legalized recreational use of marijuana, state lawmakers in 27 states considered measures to do so last year, according to the Marijuana Policy Project, an advocacy group promoting legalization of the drug. “Virtually every legislature in the country is taking a close look at its marijuana policies, and many have adopted significant reforms in 2019,” Karen O’Keefe, a spokesman for the group, told The Hill. The reforms included measures in New Mexico and Hawaii decriminalizing marijuana possession, and a North Dakota law eliminating jail time for individuals convicted of marijuana possession. Congress is also beginning to consider proposals to amend or eliminate the federal law that classifies marijuana as an illegal drug.

While pro-marijuana advocates are touting continued progress, opponents contend that the legalization campaign is losing steam. The report tracking legislative initiatives “is an attempt to mask what was by far the worst year for legalization advocates since 2011,” Kevin Sabet, a spokesman for “Smart Approaches to Marijuana” told The Hill. “Parents, teachers and public health practitioners defeated bills in more than half a dozen states, including New York and New Jersey, despite being outspent by an average of 30 to one,” Sabet said, adding, “When we are able to discuss the failures of legalization, such policies get rejected.”

Public opinion polls indicate that public support for legalizing marijuana is growing. More than 60 percent of registered voters responding to a poll conducted for NPR agreed that legalizing recreational marijuana would be “a good idea.”

IN CASE YOU MISSED THIS

Condominium associations wrestling with requests for comfort animals might be concerned about a recent report describing the increasing popularity of “cow cuddling” for people seeing relief from stress.

The homeownership rate for Black Americans has fallen to 40.6 percent ─ an all-time low.

A newly enacted Oregon law will require many cities in the state to permit multi-family developments in neighborhoods zoned for single-family dwellings. Advocates say the measure will expand the supply of affordable housing.

American homeowners, long noted for trading up the housing ladder, are remaining in place for longer periods. The average tenure reached a record high of 8.09 years in the second quarter of this year, almost double the average of 4.21 years in the pre-recession period between 2001 and 2007.

The U.S. Senate is considering a bipartisan bill that would require the installation of carbon monoxide detectors in public housing. The legislation responds to an investigative report by NBC News that identified 13 carbon-monoxide related deaths in public housing since 2003.

LEGAL BRIEFS

FENCED IN

Disputes over requests for reasonable accommodations under federal and state fair housing laws often turn on what is considered “reasonable” under those statutes. In this case (Fox Bay Civic Association v. Creswell), a Michigan Appeals Court determined that the accommodation at issue was not reasonable.

The defendant, Janis Creswell, who owned a home in the Fox Bay Civic Association, erected a fence in her yard to contain her two dogs – an emotional support animal and a service dog – prescribed to help her manage several debilitating physical ailments. The subdivision’s deed restrictions required owners to obtain permission from the homeowners association before constructing a fence, which Creswell did not do. The HOA, which prohibited fences, except those constructed around swimming pools, ordered Creswell to remove hers. She refused, arguing that the fence was a Fair Housing Act accommodation the HOA was required to allow.

The association sued to enforce the deed restriction. The trial court granted summary judgment in its favor and Creswell appealed. The key issue on appeal was whether the dog run and electric fence the HOA had suggested were acceptable alternatives to the fence Creswell said she required. The trial court determined that the alternatives provided the accommodation Creswell needed without violating the association’s deed restriction, and the Appeals Court agreed.

In its analysis, the court noted that an accommodation is considered reasonable under fair housing laws “when it imposes no fundamental alteration in the nature of the program or undue financial and administrative burdens.” The reasonableness standard, the court said, generally requires weighing “the benefits of the proposed accommodation” for a disabled individual, against the extent to which it would “undermine the legitimate purposes and effects” of the restriction involved, and against the burden the accommodation would impose on a housing provider.

Creswell argued that the association was “not accommodating her at all,” but was “flat out demanding that she live in the subdivision under the same rules as everyone else regardless of her disability.” The Appeals Court read the situation differently, concluding that Creswell had not demonstrated that the fence she demanded was the only reasonable accommodation available to her.

But requiring the association to approve the accommodation “after the fact and without the consent of her neighbors,” the court said, would “undermine the purpose of the deed restriction and threaten the benefits property owners derive from enforcement of the restriction.” Turning the deed “restriction” into a deed “suggestion” would additionally” undercut plaintiff’s authority to enforce the restriction to ensure an aesthetically pleasing and “harmonious” subdivision, as it would invite residents to act now and seek plaintiff’s approval later,” the court continued. Reducing the effectiveness of the deed restrictions, moreover, would “either fundamentally alter the aesthetic nature of the subdivision or impose ‘undue financial and administrative burdens’ on the homeowners association, by requiring “heightened watchfulness for unapproved structures and additional efforts, including legal actions, to enforce the deed restrictions.”

Creswell also failed to meet the basic benchmark for a reasonable accommodation request, which, the court said, requires demonstrating that the accommodation is “essential, not just preferable.” The assessment of need, the court noted, requires considering “whether another alternative on offer” would provide the full enjoyment of housing that the Fair Housing Act requires. “Because there are reasonable alternatives to her fence [that do not violate the association’s deed restrictions],” the court concluded, Creswell “has not shown that ex post facto approval of her fence is necessary to satisfy the goal of equal housing opportunity.” The HOA, on the other hand, “has shown that reasonable alternatives exist which would better balance defendant’s needs to let a dog outside unsupervised with the[association’s] need to control and preserve the aesthetic uniformity and character of the community.”

WORTH QUOTING

“The way things are going, an entire generation of Americans may be approaching retirement before they can securely own a home or be forced to take on more risk than they can reasonably afford in order to realize their dream of homeownership.” ─ Thomas Sponholtz, CEO of Unison.


Marcus, Errico, Emmer & Brooks specializes in condo law, representing clients in Massachusetts, Rhode Island and New Hampshire.