Unfortunately, as much as we try as a society to prevent it, discrimination still remains in society, including in the business of real estate.
Potential buyers and renters routinely face situations where they are refused viewings and are told they cannot put offers on their dream property and there are shocking levels of discrimination complaints against estate agents.
What can a property purchaser or potential tenant do in light of such discrimination by estate agents, landlords and property sellers/developers?
A formal complaint can be made to The Property Ombudsman (“TPO”) and to Trading Standards or a civil action can brought through the courts either by yourself or with the help of a solicitor.
The Equality Act 2010 introduced nine protected characteristics under which it would be unlawful to discriminate against: age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion/beliefs, sex and sexual orientation.
The Property Ombudsman Code of Practice for Residential Estate Agents is a code that applies to estate agency services in the United Kingdom (except Scotland) which is provided by a person or organization who has agreed or is required to comply with it for the marketing of residential property. The TPO Code of Conduct added some additional characteristics to this in October of 2015. The additional characteristics listed under this code included disability, nationality, infirmity, lack of knowledge, lack of linguistic or numerical ability, economic circumstances, bereavements, and English language skills. Under the TPO Code of Conduct, unlawful discrimination is defined as giving someone less favorable treatment because they have or are perceived to have at least one of the mentioned characteristics or equally because they are seen to have an association with someone who has or is perceived to have at least one of these characteristics.
Discrimination can be experienced under two guises – direct and indirect.
The Equality and Human Rights Commission (“ECHR”) have published Statutory Code of Practice (2010) (“EHRC Code”).
Direct discrimination according to the ECHR occurs “when a person treats another less favorably than others because of a protected characteristic”.
On the other hand, there is indirect discrimination which can occur where there is discrimination but it doesn’t fall under any of the protected characteristics mentioned in the Equality Act 2010, for example, someone on housing benefits. Discrimination of this kind, although not clearly listed for protection under a statute can still lead to discrimination towards specific groups such as women and those with a disability as they are more likely to need housing benefits.
The definition of indirect discrimination given by Citizens’ Advice Bureau is when a service provider “applies a policy, rule or way of doing things that puts you and other people like you at a disadvantage compared with others”. Indirect discrimination can also occur when a real estate agent tries to deter someone from putting an offer in on a house or flat simply because of a characteristic that they have.
Real estate agents must also avoid accepting any instructions to discriminate against a potential tenant/buyer/seller in order to not incriminate themselves, as accepting such instructions from a property seller or landlord will make them equally as guilty of discrimination. Despite these rules being clearly set out, some real estate agents claim to be unaware of them or just simply ignore them.
A well-known example of discrimination in the property sector, was the case of the multi-millionaire landlord Fergus Wilson who was found guilty of breaching the Equality Act 2010, banning people of an Indian and Pakistani background from living in his properties.
Luckily for those who face similar treatment to this, the bar for establishing discrimination isn’t set too high, as unless discrimination can be said to be ‘a proportionate means of achieving a legitimate aim’ it shall be deemed as a breach of their duty to act equally to all.
Furthermore, in order to establish discrimination, it is enough under Section 4.6 of EHRC Code for a person to reasonably say that they would have preferred not to have been treated differently to others and under section 4.15 of the EHCR Code discrimination can be established regardless of whether it was done consciously or unconsciously.
Overall, these requirements provide a solid foundation to protect potential buyers/renters from facing discrimination by estate agents when in the search for a property and so it is as a result of these, that if there is even a slight chance that someone feels as if they have been discriminated against, provided they have evidence, they may be able to successfully bring a claim against the seller/landlord/agent in question.
Aside from the reputational damage, breaching the Equality Act could be highly costly in compensation and legal costs for landlords and property / letting agents.
