Subchapter 20 (Real Property Transaction Discrimination)
REAL PROPERTY TRANSACTION DISCRIMINATION
§12-46-301 General provisions. The
purpose of this subchapter is to implement laws prohibiting discrimination
in real property transactions toward the goal of eliminating such discrimination
and to implement changes made by Act 171, Session Laws of Hawaii 1992,
to conform state law to Title VIII of the Civil Rights Act of 1968,
as amended by the Fair Housing Amendments Act of 1988. Chapter 515,
HRS, prohibits discriminatory practices by an owner, any person engaging
in a real property or real estate transaction, or a real estate broker
or salesperson against another person because of a protected basis.
The examples are used to provide guidance to the public and only illustrate
the particular point or principle to which they relate in the rules.
They should not be taken out of context as statements of policy that
would apply in different situations. To the greatest extent possible,
the commission will interpret the rules consistent with the examples,
however, the commission shall review each case on an individual basis
in an effort to seek an equitable application of this subchapter. [Eff
10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §368-1; HRS Chapter
515)
§12-46-302 Definitions. As
used in this subchapter, unless the context otherwise requires:
"Accessible" means a housing accommodation constructed
in conformity with the appropriate requirements of ANSI A117.1-1986
or the Fair Housing Accessibility Guidelines issued by the Department
of Housing and Urban Development.
"Age" means over the age of majority or emancipated
minors.
"Ancestry" means national origin and includes reasons
related to ancestry, such as:
(1) Marriage to or association with persons of an ancestral group;
(2) Membership in or association with an organization identified with
or seeking to promote the interests of an ancestral group;
(3) Attendance or participation in schools, churches, temples, or
mosques, generally used by persons of an ancestral group; and
(4) Because an individual's name or spouse's name is associated with
an ancestral group.
"ANSI A117.1-1986" means the 1986 edition of the
American National Standards Institute for buildings and facilities
providing accessibility and usability for disabled persons.
"Application" means written, oral, or telephone inquiries.
"Blind" means a person whose central visual acuity
does not exceed 20/200 in the better eye with correcting lenses, or
whose visual acuity is greater than 20/200 but is accompanied by a
limitation in the field of vision such that the widest diameter of
the visual field subtends an angle no greater than twenty degrees.
The impairment of sight shall be certified to on forms prescribed by
the department of taxation on the basis of a written report on an examination
performed by a qualified ophthalmologist or qualified optometrist.
"Business necessity" means a compelling and well
established public purpose which also establishes that there is no
reasonable alternative means of serving the same purpose with less
discriminatory impact.
"Commission" means the civil rights commission.
"Common use areas" means rooms, spaces, or elements
inside or outside of a housing accommodation that are made available
for the use of residents or the guests thereof. These areas include
hallways, lounges, lobbies, laundry rooms, refuse rooms, mail rooms,
recreational areas, and passageways among and between housing accommodations.
"Complainant" means any person, including a tester
or associates of a person with a protected basis, who claims to have
been injured by a discriminatory real estate transaction practice or
who believes that such person will be injured by a discriminatory real
estate transaction practice that is about to occur and files a complaint
in accordance with chapter 368, HRS, with the commission. The law does
not require such persons to expose themselves to the injury involved
with the actual act of discrimination before filing a complaint.
"Controlled substance" means any drug, substance,
or immediate precursor included in schedules I through V of part II
of chapter 329, HRS.
"Covered multi-family housing accommodations" means
buildings consisting of four or more housing accommodations, if such
buildings have one or more elevators; and ground floor dwelling units
in other buildings consisting of four or more housing accommodations.
"Deaf" means a person whose average loss in the speech
frequencies (500-2000 Hertz) in the better ear is eighty-two decibels,
A.S.A., or worse. The impairment of deafness shall be certified to
by a qualified otolaryngologist on forms prescribed by the department
of taxation.
"Disability" means having a physical or mental impairment
which substantially limits one or more major life activities, having
a record of such impairment, or being regarded as having such an impairment,
including persons who have HIV or AIDS. The term does not include current
illegal use of or addiction to a controlled substance, or alcohol or
drug abuse that threatens the property or safety of others.
"Discriminatory practice" means a practice designated
as discriminatory under the terms of this subchapter.
"Domiciled" means residence or physical presence
at a location and the intent to remain, and includes a minor child
staying in a housing accommodation on a regular basis with a parent
or relative because of visitation rights granted by a court, or because
of written or unwritten permission from a legal parent.
"Fair Housing Accessibility Guidelines" means guidelines
issued by the Department of Housing and Urban Development on March 6,
1991 to provide technical guidance on designing housing accommodations
as required by the Fair Housing Amendments Act of 1988.
"Familial status" means the presence of children
under eighteen years old in a family, including, but not limited to,
a person having custody and domiciled with a minor child or children;
a person domiciled with a minor child or children who has written or
unwritten permission from the legal parent, such as a hanai relationship;
a person who is pregnant; or any person who is in the process of securing
legal custody of a minor child or children.
"Guide dog" means any dog individually trained by
a licensed guide dog trainer for guiding a blind person by means of
a harness attached to the dog and a rigid handle grasped by the person.
"Hanai relationship" includes a child who is taken
permanently to reside, be educated, and reared by someone other than
the natural parents, traditionally a grandparent or other relative,
with the written or unwritten permission of the natural parents.
"Housing accommodation" means any improved or unimproved
real property, or part thereof, which is used or occupied, or is intended,
arranged, or designed to be used or occupied, as the home or residence
of one or more individuals; any building, structure, or portion thereof
which is occupied as, or designed or intended for occupancy as a residence
by one or more families; any vacant land which is offered for sale
or lease for the construction or location thereon of any building,
structure, or portion thereof as the home or residence of one or more
individuals; including, but not limited to, houses, apartments, town
houses, mobile home parks, trailer courts, condominiums, cooperatives,
and time-sharing properties.
"Legitimate non-discriminatory reason" means a bona
fide and compelling justification for a practice, policy, or action
established by objective proof or evidence, which standing alone would
have resulted in the same practice, policy, or action.
"Limitation" or "limit" includes
actions which exclude individuals or persons or result in creating
a preference for an individual or person.
"National origin" refers to ancestry and may include
the national origin of an ancestor.
"Person" means an individual, corporation, firm,
association, society, community, assembly, inhabitant of a district
or neighborhood, person known and unknown, the public generally, legal
representative, partnership, receiver, trust, trustee, trustee in bankruptcy,
the State, or any governmental entity or agency, labor organization,
mutual aid company, joint stock company, unincorporated organization,
management company, tenant association, fair housing organization,
or fiduciary.
"Protected basis" means race, sex, color, religion,
marital status, familial status, ancestry, disability, age, or HIV
(human immunodeficiency virus) infection.
"Public use areas" means interior or exterior rooms
or spaces of a housing accommodation that are made available to the
general public. Public use may be provided at a housing accommodation
that is privately or publicly owned.
"Real estate broker or salesperson" means a person,
whether licensed or not, who, for or with the expectation of receiving
a consideration, lists, sells, purchases, exchanges, rents, or leases
real property; or who negotiates or attempts to negotiate any of these
activities; or who purports to be engaged in these activities; or who
negotiates or attempts to negotiate a loan secured or to be secured
by a mortgage or other encumbrance upon real property; or who is engaged
in the business of listing real property in a publication; or a person
employed by or acting on behalf of any of these.
"Real estate transaction" means the advertising,
sale, exchange, rental, lease, management, or use of real property,
including, but not limited to, any actions related to real property
after the advertising, sale, exchange, rental, or lease; the cancellation
or termination of a sale, exchange, rental, or lease of real property;
and the imposition of rules, policies, and practices affecting the
terms, conditions, enjoyment, and privileges of using real property.
It does not include commercial property that is advertised, sold, exchanged,
rented, leased, managed, or used for the purposes of operating a business.
"Real property" means buildings, dwelling units,
structures, real estate, lands, tenements, leaseholds, interest in
real estate cooperatives, condominiums, mobile home parks, and hereditaments,
corporeal and incorporeal, or any interest therein.
"Real property transaction" means real estate transaction
as the term is used in this subchapter.
"Reasonable assurance" means actions or promises
which establish that certain other actions will be taken in the future;
provided that the reasonableness of an assurance shall be examined
by giving due consideration to the needs of a reasonable prudent person
in the same or similar circumstances.
"Reasonable restriction" shall not include any restriction,
prohibition, policy, practice, or rule that allows any owner or person
to refuse to negotiate or refuse to engage in a real estate transaction
because of another person's protected basis or to commit a discriminatory
practice prohibited under this subchapter; provided that the reasonableness
of a restriction shall be examined by giving due consideration to the
needs of a reasonable prudent person in the same or similar circumstances.
"Religious institution" means any religious institution
or organization, or any charitable or educational organization operated,
supervised, or controlled by a religious institution or organization,
which does not restrict membership to persons on the basis of race,
color, or ancestry.
"Respondent" means any person, owner of real property,
real estate broker, or salesperson, against whom a complaint or petition
has been filed with the commission; the party against whom relief is
sought; or any party who contests or controverts a proceeding or petition.
"Service animal" means any animal that is trained
to provide those life activities limited by the disability of the person.
"Signal dog" means any dog that is trained trained
to alert a deaf person to intruders or sounds.
"Steering" means the practice of directing persons
who seek to enter into a real estate transaction toward or away from
real property in order to deprive them of the benefits of living in
a discrimination-free environment, and actions designed to discourage
persons from seeking housing in a particular community, neighborhood,
development, housing accommodation, or part thereof.
"Tester" means any person seeking to engage in a
real estate transaction, regardless of the person's actual intent to
engage in such a transaction, who has been subject to discriminatory
practices in real estate transactions because of a protected basis,
and tenant associations or fair housing organizations whose members
include such persons. [Eff 10/15/93; am 5/3/99] (Auth: HRS §§368-3;
515-9(7)) (Imp: HRS §§515-2, 515-3, 515-8)
§12-46-303 Construction. This
subchapter shall be liberally construed according to the fair import
of their terms toward the goal of eliminating discrimination in real
estate transactions. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp:
HRS §515-1)
§12-46-304 Record keeping requirements. (a)
Any records of real estate transactions made or kept by an owner, any
person engaging in a real estate transaction, or real estate broker
or salesperson involving the lease or rental of a housing accommodation:
(1) In a building which has four or more housing accommodations; or
(2) Which is owned by a person who owns three or more housing accommodations;
shall be preserved for one year from the date of making the record
or the occurrence of the real estate transaction practice, policy,
or action involved, whichever is later. The records shall include,
but not be limited to, advertisements, applications, and any other
information furnished by the person seeking the housing accommodation,
lease or rental agreements, eviction records, any records affecting
changes in the terms, conditions, privileges, or enjoyment of tenancy,
occupancy, or use of the premises, and corporate or association minutes
and resolutions adopting house rules affecting occupancy.
(b) Any other records of real estate transactions,
not involving a lease or rental, made or kept by an owner, any person
engaging in a real estate transaction, or real estate broker or salesperson
shall be preserved for one year from the date of making of the record
or the occurrence of the real estate transaction practice, policy,
or action involved, whichever is later.
(c) Where a complaint has been filed or a civil action has been brought
against a respondent under chapter 368 or 515, HRS, the respondent
shall preserve all records relevant to the complaint or action until
final disposition of the complaint or action, as defined in section
12-46-21(c)(2).
(d) Where a respondent is required to preserve records under this
section and the records have been
destroyed or are unavailable, in an investigation or proceeding on
a complaint filed with the commission or in a civil action it may be
presumed that the evidence contained in the records was adverse to
the interest or position of the respondent. [Eff 10/15/93] (Auth: HRS
§§368-3; 515-9(7)) (Imp: HRS §§515-1, 515-3, 515-5, 515-6, 515-9)
§12-46-305 Discriminatory practices. It
is a discriminatory practice for an owner or any other person engaging
in a real estate transaction, or for a real estate broker or salesperson
because of a person's protected basis:
(l) To refuse to engage in a real estate transaction, evict, or terminate
a tenancy;
(2) To discriminate in the terms, conditions, enjoyment, or privileges
of a real estate transaction, or in the furnishing of facilities or
services in connection therewith;
(3) To refuse to receive or fail to transmit a bona fide offer to
engage in a real estate transaction from a person;
(4) To refuse to negotiate for a real estate transaction with a person;
(5) To represent to a person that real property is not available for
inspection, sale, rental, or lease when, in fact, it is available,
or to fail to bring a property listing to the person's attention, or
to refuse to permit the person to inspect real property, or to steer
a person seeking to engage in a real estate transaction;
(6) To print, circulate, post, or mail, or cause to be published a
statement, advertisement, or sign, or to use a form of application
for a real estate transaction, or to make a record or inquiry in connection
with a prospective real estate transaction, which indicates, directly
or indirectly, an intent to make a limitation, specification, or discrimination
with respect thereto;
(7) To offer, solicit, accept, use, or retain a listing of real property
with the understanding that a person may be discriminated against in
a real estate transaction or in the furnishing of facilities or services
in connection therewith;
(8) To discriminate against or deny a person access to, or membership
or participation in any multiple listing service, real estate broker's
organization, or facility involved either directly or indirectly in
real estate transactions, or to discriminate against any person in
the terms or conditions of such access, membership, or participation;
(9) To engage in harassment; or
(10) To institute or apply facially neutral policies or restrictions
which result in a disparate adverse impact. [Eff 10/15/93] (Auth: HRS
§§368-3; 515-9(7)) (Imp: HRS §515-3)
§12-46-306 Discrimination on the basis
of disability. (a) It is a discriminatory practice for an
owner or any other person engaging in a real estate transaction,
or for a real estate broker or salesperson:
(1) To refuse to engage in a real estate transaction or to deny equal
opportunity to use and enjoy a housing accommodation with a person
with a disability because the person uses the services of a guide dog,
or signal dog, or service animal, provided that reasonable restrictions
or prohibitions may be imposed upon the person with a disability regarding
excessive noise or other problems caused by those animals including:
(A) Observing applicable laws, including leash laws and pick-up laws;
(B) Assuming responsibility for damage caused by the dog or animal;
(C) Cleaning the housing unit upon vacating, by fumigation, deodorizing,
professional carpet cleaning, or other appropriate methods; or
(D) Any other reasonable restriction that would leave the housing
accommodation in the condition it was in prior to the occupancy of
the tenant with a disability, except for reasonable wear and tear;
(2) To solicit or require as a condition of engaging in a real estate
transaction that the buyer, renter, or lessee be tested for human immunodeficiency
virus (HIV) infection;
(3) To refuse to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to
afford a person with a disability equal opportunity to use and enjoy
a housing accommodation, including public and common use areas; or
Example:
Kanoa Gardens is a three hundred unit apartment complex with four
hundred fifty parking spaces which are available to tenants and guests
on a "first come first served" basis. Paul applies for housing in Kanoa
Gardens. Paul has a mobility impairment and is unable to walk more
than a short distance and therefore requests that a parking space near
his unit be reserved for him so he will not have to walk very far to
get to his apartment. It is a violation of the law for the owner or
manager of Kanoa Gardens to refuse to make this requested accommodation.
Without a reserved space Paul may not be able to live in Kanoa Gardens
at all or, when he has to park in a space far from his unit, might
have great difficulty getting from his car to his apartment unit. The
accommodation therefore is necessary to afford Paul an equal opportunity
to use and enjoy a housing accommodation. The requested accommodation
is reasonable because it is feasible and practical because of the number
of unassigned parking spaces available.
(4) To refuse to permit, at the expense of a person with a disability,
reasonable modifications of existing premises, occupied or to be occupied
by the person, if the proposed modifications may be necessary to afford
the person with a disability full enjoyment of the premises.
Example:
A tenant with a disability asks an owner or manager for permission
to install grab bars in the bathroom at his or her own expense. It
is necessary to reinforce the walls with blocking between studs in
order to affix the grab bars. It is unlawful for the owner or manager
to refuse to permit the tenant, at the tenant's own expense, from making
the modifications necessary to add the grab bars.
An owner, any other person engaging in a real estate transaction,
real estate broker, or salesperson may grant permission for a modification
on the condition that the person with a disability give:
(A) A reasonable description of the proposed modifications;
(B) Reasonable assurances that the modifications will be done in a
workmanlike manner and that any required building permits will be obtained;
and
(C) Reasonable assurances that the disabled person will restore the
interior of the premises to the condition that existed before the modification,
reasonable wear and tear excepted; however, restoration will not be
necessary of those modifications which do not interfere with the owner's
or next tenant's use and enjoyment of the premises.
Example:
An owner or manager may require the creation of an escrow fund and
the payment of money into the fund to cover the costs of restoring
the premises. Any portion of the fund, including interest, that is
not required for the restoration of the premises will be reimbursed
to the person with a disability, who paid into the fund, within a reasonable
time.
Example:
If a person with a disability receives permission to put in grab bars
and widen the doorway, it is not necessary to remove the blocking or
narrow the doorway to restore the premises because the reinforced walls
and wider doorway will not interfere with the owner's or next tenant's
use and enjoyment of the premises. However, the tenant can be required
to remove the grab bars and restore the wall to the condition that
existed before the modification, reasonable wear and tear excepted.
(b) All covered multifamily housing accommodations, designed and constructed
for first occupancy after March 13, 1991, shall:
(1) Be designed and constructed to have at least one accessible entrance,
unless it is impractical to do so because of the terrain or unusual
characteristics of the site; and
Example:
A real estate developer plans to construct six covered multifamily
housing accommodations on a site with a hilly terrain. Because of the
terrain, it will be necessary to climb a long and steep stairway in
order to enter the dwellings. Since there is no practical way to provide
an accessible route to any of the housing accommodations, one need
not be provided.
(2) If built with an accessible building entrance, be designed and
constructed in such a manner that:
(A) Public use and common use portions of the housing accommodations,
including recreation and laundry rooms, are accessible to and usable
by persons with disabilities;
(B) All doors designed to allow passage into and within all premises
are sufficiently wide to allow passage by persons who use wheelchairs;
(C) All premises contain an accessible route into and through the
housing accommodation;
(D) Light switches, electrical outlets, thermostats, and other environmental
controls are in accessible locations;
(E) Reinforcements in the bathroom walls allow later installation
of grab bars; and
(F) Kitchens and bathrooms are accessible to persons who use wheelchairs.
Example:
A developer plans to construct a one hundred unit condominium apartment
building with one elevator. In accordance with the law, the building
has at least one accessible route leading to an accessible entrance.
All one hundred units are covered multifamily housing accommodations
and they all must be designed and constructed so that they comply with
the accessibility requirements of the law.
For purposes of this subsection, a multifamily housing accommodation
shall be deemed to be designed and constructed for first occupancy
on or before March 13, 1991, if it is occupied by that date or if the
last building permit or renewal thereof for the covered multifamily
housing accommodation is issued by a state, county or local government
agency on or before June 15, 1990. Accessibility will be determined
based upon ANSI A117.1-1986 or the Fair Housing Accessibility Guidelines.
The burden of establishing impracticality because of terrain or unusual
site characteristics is on the owner, person engaging in a real estate
transaction, or real estate broker or salesperson. [Eff 10/15/93; am
5/3/99] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §515-3)
§12-46-307 Discrimination on the basis
of familial status. It is a discriminatory practice for
an owner or any person engaging in a real estate transaction, or
for a real estate broker or salesperson to:
(1) Refuse to engage in a real estate transaction with a person because
of familial status;
(2) Impose house rules, by-laws, or other provisions, established
by a condominium association, cooperative association, apartment complex
tenants', owners', or leaseholders' association, or any other organization
or association, which by intent or effect discriminate against a person
because of familial status;
Example:
House rules (e.g. "two person limit to a bedroom") which have the
effect of discriminating ("adverse impact") against persons with children
(because the overall square footage is large enough under housing code
for three persons) are unlawful unless the rule can be justified by
establishing a business necessity. House rules (e.g. "no families with
children") which intentionally discriminate against persons with children
are unlawful unless there is a specific exemption for the rule under
this subchapter or sections 515-4 or 515-8, HRS.
(3) Impose occupancy limits on a housing accommodation sought by a
person because of familial status, unless such limits are justified
by establishing a business necessity;
Example:
A person with children seeking a housing accommodation cannot be denied
the accommodation on the basis of an occupancy limit unless it is based
upon a compelling and well established public purpose, such as a county
building code established to promote public safety, and there are no
other reasonable means to serve the same purpose with less discriminatory
impact.
(4) Impose against a person because of familial status, by way of
any action to evict, terminate the tenancy, or refuse to engage in
a real estate transaction, occupancy limits on a housing accommodation
which is currently occupied by such person, unless justified by business
necessity by demonstrating that such limits are required by county
building codes established to promote public safety, and if the person
has asked the owner, person engaging in a real estate transaction,
real estate broker, or salesperson to apply for a variance or exemption
from the county, the application for variance or exemption has been
denied;
Example:
A current tenant whose family size exceeds occupancy limits, which
are required by a county building code established to promote public
safety, may ask an owner, any person engaging in a real estate transaction,
or real estate broker or salesperson to apply for a variance or exemption
to the county building code prior to being evicted from the accommodation.
The owner may apply for the variance or authorize the tenant to do
so, in which case the owner shall reasonably assist the tenant and
provide any necessary documents in the owner's possession. If denied
by the county agency, the occupancy limit can be used as the basis
to evict. The tenant asking that the exemption be sought can be required
to pay any filing fee and associated costs.
(5) Restrict or prohibit the use by children of common use or public
use areas or recreational facilities, unless based upon business necessity;
(6) Designate separate areas for use by children so as to justify
separate areas where children are excluded;
(7) Require the payment of a higher security deposit, surcharge, or
additional fees because of familial status; or
(8) Require a person to sign a waiver of liability as a condition
of occupancy by children. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7))
(Imp: HRS §515-3)
§12-46-308 Discriminatory financial
practices. It is a discriminatory practice for a person,
a representative of such person, or a real estate broker, appraiser,
or salesperson, to whom an inquiry or application is made for financial
assistance in connection with a real estate transaction or for construction,
rehabilitation, repair, maintenance, or improvement of real property,
because of a protected basis:
(l) To discriminate against the applicant;
(2) To use a form of application for financial assistance or to make
or keep a record or inquiry in connection with applications for financial
assistance which indicates, directly or indirectly, an intent to make
a limitation, specification, or discrimination due to the person's
protected basis, unless such records are required by federal law;
(3) To discriminate in the making or purchasing of loans or the provision
of other financial assistance for purchasing, constructing, improving,
repairing, or maintaining a housing accommodation, or the making or
purchasing of loans or the provision of other financial assistance
secured by residential real estate; or
(4) To discriminate in the selling, brokering, or appraising of residential
real property. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS
§515-5)
§12-46-309 Blockbusting. It
is a discriminatory practice for a person, representative of a person,
real estate broker, appraiser, or salesperson for the purpose of inducing
a real estate transaction because of a protected basis:
(1) To represent that a change has occurred or will or may occur in
the composition of the owners or occupants in the block, neighborhood,
or area in which the real property is located; or
(2) To represent that this change will or may result in the lowering
of property values, an increase in criminal or antisocial behavior,
or a decline in the quality of the schools in the block, neighborhood,
or area in which the real property is located;
if such person, representative, broker, appraiser, or salesperson
may benefit financially from the transaction, regardless of actual
financial gain. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp:
HRS §515-7)
§12-46-310 Prohibited interference,
coercion, or intimidation. It is a discriminatory practice
for a person, or for two or more persons to conspire:
(1) To retaliate, threaten, or discriminate against a person because
of the exercise or enjoyment of any right granted or protected by this
subchapter, or because the person has opposed a discriminatory practice,
or because the person has made a charge, filed a complaint, testified,
assisted, or participated in an investigation, proceeding, or hearing
under this subchapter;
(2) To aid, abet, incite, or coerce a person to engage in a discriminatory
practice;
Example:
A newspaper by publishing an advertisement which states a preference
based upon a protected basis has aided a person engaging in a discriminatory
practice.
(3) To interfere with any person in the exercise or enjoyment of any
right granted or protected by this subchapter or with the performance
of a duty or the exercise of a power by the commission;
(4) To obstruct or prevent a person from complying with this subchapter
or an order issued thereunder;
(5) To intimidate or threaten any person engaging in activities designed
to make other persons aware of rights granted or protected by this
subchapter or encouraging such other persons to exercise such rights;
or
(6) To threaten, intimidate, or interfere with persons in their enjoyment
of a housing accommodation, or visitors or associates of such persons,
because of the person's protected basis. [Eff 10/15/93] (Auth: HRS
§§368-3; 515-9(7)) (Imp: HRS §515-16)
§12-46-311 Other discriminatory practices. (a)
An attempt to commit, directly or indirectly, a discriminatory practice
is a discriminatory practice.
(b) A party to a conciliation agreement made under chapter 515, HRS,
or this subchapter, who violates the terms of such agreement, has committed
a discriminatory practice. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7))
(Imp: HRS §§515-17, 515-18(b))
§12-46-312 Restrictive covenants and
conditions. (a) Every provision in an oral agreement or
a written instrument relating to real property which purports to
forbid or restrict the conveyance, encumbrance, occupancy, use, or
lease thereof to individuals because of their protected basis is
void.
(b) Every condition, restriction, or prohibition, including a right
of entry or possibility of reverter, which directly or indirectly limits
the use or occupancy of real property because of a protected basis
is void, except a limitation, on the basis of religion, in the use
of real property held by a religious institution and used for religious
or charitable purposes.
(c) It is a discriminatory practice to insert in a written instrument
relating to real property a provision that is void under this section
or to honor such a provision in the chain of title. [Eff 10/15/93]
(Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §515-6)
§12-46-313 Exemptions. (a)
Sections 12-46-305, 306, and 307 do not apply:
(l) To the rental of a housing accommodation in a building which contains
housing accommodations for not more than two families living independently
of each other if the lessor resides in one of the two housing accommodations;
or
(2) To the rental of a room or up to four rooms in a housing accommodation
by an individual if the individual resides therein.
(b) Nothing in this subchapter regarding familial status or age shall
apply to housing for older persons as defined by 42 U.S.C. section
3607(b)(2). [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS
§515-4)
§12-46-314 Religious institutions. It
is not a discriminatory practice for a religious institution in a real
estate transaction conducted for charitable or religious purposes to
give preference to members of the same religion. [Eff 10/15/93] (Auth:
HRS §§368-3; 515-9(7)) (Imp: HRS §515-8)
§12-46-315 Public contractors. (a)
In the case of a respondent who is found by the commission to have
engaged in a discriminatory practice in the course of performing under
a contract or subcontract with the State or a county, or agency thereof,
if the discriminatory practice was authorized, requested, commanded,
performed, or knowingly or recklessly tolerated by the board of directors
of the respondent or by an officer or executive agent acting within
the scope of the officer's or agent's employment, the commission shall
mail or serve a certified copy of a commission decision finding that
respondent has engaged in a discriminatory practice to the contracting
agency. Unless the commission's finding of a discriminatory practice
is reversed in the course of judicial review, the finding of discrimination
is binding on the contracting agency.
(b) Upon receiving a certified copy of the decision under subsection
(a), a contracting agency may take appropriate action to:
(l) Terminate a contract, or portion thereof, previously entered into
with the respondent, either absolutely or on condition that the respondent
carry out a program of compliance with this subchapter; and
(2) Assist the State and all counties, and agencies thereof, to refrain
from entering into further contracts, or extensions or other modifications
of existing contracts, with the respondent until the commission is
satisfied that the respondent will carry out policies in compliance
with this subchapter. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7))
(Imp: HRS §§515-13(c), 515-19)
§12-46-316 Responsibility for discriminatory
practices. A person may be liable for discriminatory practices
made unlawful under this subchapter including, but not limited to,
the following situations:
(1) An owner, any person engaging in a real estate transaction, or
a real estate broker or salesperson is liable for any of its acts which
constitute a discriminatory practice under this subchapter.
(2) An owner, any person engaging in a real estate transaction, or
a real estate broker or salesperson may be liable for the acts of agents
or persons acting on their behalf regardless of whether the specified
acts were authorized or even forbidden, if the owner, any person engaging
in a real estate transaction, or a real estate broker or salesperson
knew or should have known of their occurrence. The commission will
examine the circumstances of the particular agency or employment relationship
and job functions of the person in determining whether the person acted
as an agent or on behalf of the owner, any person engaging in a real
estate transaction, or a real estate broker or salesperson. [Eff 10/15/93]
(Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §§515-1, 515-2, 515-3, 515-5,
515-6, 515-7, 515-9(7), 515-16, 515-17, 515-20)
§12-46-317 Causation standard. In
determining whether a discriminatory practice constituting disparate
treatment has been committed under this subchapter, it must be shown
by a preponderance of the evidence:
(1) That a causal connection existed between a person's protected
basis and the alleged discriminatory conduct; and
(2) That the protected basis was any part of the reason for the conduct.
[Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §§515-1, 515-2,
515-3, 515-5, 515-6, 515-7, 515-9(7), 515-16, 515-17, 515-20)
§12-46-318 Defenses. (a) Adverse
impact. It may be a defense to a claim that a facially-neutral
practice, policy, or action has the effect of discriminating against
a person because of a protected basis for an owner, any other person,
real estate broker, or salesperson charged with discrimination to
establish that there is a business necessity for the practice, policy,
or action.
(b) Specific activity permitted. It may be a defense
to a claim that a practice, policy, or action discriminates against
a person because of a protected basis for an owner, any other person,
real estate broker, or salesperson charged with discrimination to establish
that the alleged discriminatory practice, policy, or action is specifically
permitted under this subchapter or by sections 515-4 or 515-8, HRS.
[Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §§515-1, 515-2,
515-3, 515-4, 515-5, 515-6, 515-7, 515-9(7), 515-16, 515-17)
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