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DQ116: Singleton Q re Listing Service

DQ116: Singleton Q re Listing Service. 4 th Proviso: [T]he sale or rental of any such SFH shall be excepted from the application of this title only if such house is sold or rented

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DQ116: Singleton Q re Listing Service

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  1. DQ116: Singleton Q re Listing Service 4th Proviso: [T]he sale or rental of any such SFH shall be excepted from the application of this title only if such house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employ- ee or agent of any such broker, agent, salesman, or person and (B) without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of [§3604(c)]; but nothing in this proviso shall prohibit the use of attorneys, escrow agents, abstractors, title com- panies, and other such professional assistance as necessary to perfect or transfer the title …

  2. DQ116: Singleton Q re Listing Service Rosalie’s Rentals (Listing Service) • Gets notices of available housing from ldlds • Compiles into list & sells to prospective tnts • Ldlds pay nothing In the business of …renting dwellings?

  3. (c) Business of selling or renting dwellings defined. For the purposes of subsection (b), a person shall be deemed to be in the business of selling or renting dwellings if— (1) he has, within the preceding twelve months, participated as principal in three or more transactions involving the sale or rental of any dwelling or any interest therein, or (2) he has, within the preceding twelve months, participated as agent, other than in the sale of his own personal residence in providing sales or rental facilities or sales or rental services in two or more transactions involving the sale or rental of any dwelling or any interest therein, or (3) he is the owner of any dwelling designed or intended for occupancy by, or occupied by, five or more families.

  4. DQ116: Singleton Q re Listing Service 4th Proviso: [T]he sale or rental of any such SFH shall be excepted from the application of this title only if such house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B) without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of [§3604(c)]; but nothing in this proviso shall prohibit the use of attorneys, escrow agents, abstractors, title com- panies, and other such professional assistance as necessary to perfect or transfer the title …

  5. DQ116: Singleton Q re Listing Service Rosalie’s Rentals (Listing Service) In the business of …renting dwellings? Court says yes: • provides rental services for compensation = “in business” • fn4: not on list of OK’d professionals (note all relate more to sales than rentals) • Congressional intent to read exception narrowly

  6. DQ116: Singleton Q re Listing Service Rosalie’s Rentals (Listing Service) In the business of …renting dwellings? Policy questions for you: • why isn’t it just advertising? tenant payment? (also true for, e.g., newspaper) • w/in purpose of exception to exemption? • different if non-profit (like univ. website)?

  7. Do “3 SFHs” Include Owner’s Residence? Lamb says no. Hogar Agua & subsequent cases say yes. No specific language exempts residences

  8. Do “3 SFHs” Include Owner’s Residence? 2d Proviso: [I]n the case of the sale of any such SFH by a private individual owner not residing in such house at the time of such sale or who was not the most recent resident of such house prior to such sale, the exemption granted by this subsection shall apply only with respect to one such sale within any twenty‑four month period….

  9. Do “3 SFHs” Include Owner’s Residence? 2d Proviso would be unnecessary if residences excluded Hogar Agua on Legislative History (p.324-25): Examples by drafter assume residence counts • note both focus on proximity of owner after sale • BUT subsequent general comment drawing parallel to Mrs. Murphy exemption suggests residence + 3 • Court: more specific trumps more general (n.8 p.325) Policy: Difference between 3 and 4 probably not very significant

  10. Do “3 SFHs” Include Off-Market SFHs? Nothing in [§3604] … shall apply to— (1) any single‑family house sold or rented by an owner: • Provided, That such private individual owner does not own more than three such single‑family houses at any one time…. LAMB: such must refer to “sold or rented” ME: BUT “such private individual owner”

  11. Do “3 SFHs” Include Off-Market SFHs? Policy: Probably very narrow set of cases where off-market units put owner over 3, so resolution of specific Q may not matter much (Though ties back to Q of whether exemption is for house or for transaction)

  12. Do “3 SFHs” Include Off-Market SFHs? HOGAR AGUA ANALYSIS (pp.325-26): • structure: meaning of “sold/rented” unclear; seems a bit weird to insist on current transaction b/c can violate FHA w/o selling or renting (e.g. denial) • legislative history noted for residence Q supports including residences not on market • canon: where language unclear (“such”), construe ambiguity in favor of goals of statute & against exception

  13. How do we count a duplex? Statute: “single family house” (v. home) • Duplex = 0 SFHs • So 3 SFHs + Duplex OK • BUT no exemption for sale of duplex itself • Duplex = 2 SFHs? • So 3 SFHs + Duplex Not OK • BUT exemption possible for sale of duplex itself

  14. Can R.E. Professional Ever Claim Exemption? 4th Proviso: [T]he sale or rental of any such single‑family house shall be excepted from the application of this title only if such house is sold or rented • without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman … Can you use yourself?

  15. Can R.E. Professional Ever Claim Exemption? (c) Business of selling or renting dwellings defined. For the purposes of subsection (b), a person shall be deemed to be in the business of selling or renting dwellings if— (3) he is the owner of any dwelling designed or intended for occupancy by, or occupied by, five or more families. Might be aimed at saying can’t invoke exception at all if own a 5+ building

  16. Can R.E. Professional Ever Claim Exemption? Babin (6th Cir.): Focus on Use of Facilities

  17. Can R.E. Professional Ever Claim Exemption? 4th Proviso: [T]he sale or rental of any such single‑family house shall be excepted from the application of this title only if such house is sold or rented • without the use in any mannerof the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman …

  18. Can R.E. Professional Ever Claim Exemption? Babin (6th Cir.): Focus on Use of Facilities Fact Q as to whether you accomplished transaction w/o benefits from resources of real estate agency. Yields detailed time-consuming inquiry

  19. Can R.E. Professional Ever Claim Exemption? Competing Policy Concerns: • Everyone should get some scope for exercise of private discretion • Professionals always know better and should not be allowed to use their expertise in support of discrimination

  20. ANNOUNCEMENTS Online: Info Memo #5 • Final Exam Coverage: Units I-IV • List of Exam Qs by Topic: Units V & VI • Assignment IV: Comments & Sample Answers (From Prior Years) • Write-Up of City of Edmonds Thursday: • Course Evaluations • Qs on Assmts V & VI Extra Office Hours Fri 11/10 & 11/17 (9:45-11:15)

  21. GREEN ORANGE Hager, Lauren Canepa, Bernard Harrison, Stacy Drude, Rachel Lomax, Chris Frazer, Amanda Meisels, Esther James, Robert Moskowitz, Oren McGinn, Shannon Oppenheimer, Dani Nuzum, Robert Wolgin, Michael Tankha, Neena Zarin, Gregory Left Front Left Rear PURPLE Kim, Michael Mroczek, Ashley Muller, Erika Ohayon, Corey Potu, Swetha Steinman, Becca Townsend, Henry Right Middle

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