Fair or Unfair Housing

Fair Housing

John Mijac, Managing Broker
Long Realty Foothills Office


Fair housing is intrinsically unfair! Is that hot ice or sweet lemons? No, in order to meet Fair Housing guidelines and be fair to some we must be unfair to others. Before I cross a line in your mind, let me preface this diatribe with a couple of other statements. First, we live in a state where good faith and fair dealing are written into the law (see 32-2153 B 9 and R4-28-1101 A), did you know that? And, though I am all about being fair, many would wonder what fair actually means.* For me it is simple, as Justice Stewart once famously said about hard core pornography, “I know it when I see it,” and that sentiment applies to unfair housing. While unfair housing is not pruient, it is out of the bounds of acceptable behavior for most people. 

Secondly, in my life I have worked to increase our perception of what is fair, and who are the protected classes in housing, specifically with regards to sexual orientation and the transgender community … some might see that as pruient, but not me…it’s really about treating everyone with respect and equality.  How can that be unfair? Well, it’s a new idea and people don’t change quickly. It might seem unfair if your slice of the pie gets smaller at the dinner table, but when there are more guests, what else to do? Most people prefer an eighth or even a sixth, but when you slice down to a 10th or 20th, it just seems unfair…I want my pie hot and juicy and covered with ice cream, but I’ll take a sliver over nothing anyday if that’s all there is.

But whose pie is it anyway? Let’s break that down because the word whose means somebody owns that pie…but who is the somebody that gets to own anything and what does ownership even mean? I am sure you think I have really gone off the deep end again, but these are not questions that have static answers. The who, and what of ownership have changed over the decades and they keep changing. 

Let’s take that last part first: what is it to own something? You may not realize this, but our current understanding of ownership is just over a 100 years old. Prior to 1913, when questions of ownership came up, people in the western world consulted a legal tome written by Henry Blackstone in the 18th century. Coming out of England, with centuries of tradition where the King granted titles to his circle with deeds for land, it is understandable that Blackstone declared ownership to be “sole” and “despotic.” He argued that proof of ownership is that you can distroy the thing…but that doesn’t jibe at all with what we understand today. 


In 1913 a guy called Newcomb Hohfeld really codified our understanding of ownership. He is the one who came up with the “bundle of rights” and responsibilities. So, turn of last century we realized that ownership had to account for other people…think easements, and other restrictions to property. We’re not done realizing things, but, this new understanding encompassed the idea of waste. Unlike Blackstone, Hohfeld knew hat you should not destoy a thing (the land) that was here eons before you and will outlast all your progeny. If you did you would trammel on the rights of posterity. As a result, our understanding today is really closer to stewardship than the idea Blackstone had. With our emergent technology and bursting population, the world has grown smaller: just like that dessert. Now the concept of Waste may soon be invoked on any entity that participates in destruction of the land and it’s apputrtenances. See United States v. White Mt. Apache Tribe, a lawsuit based on the concept that the U.S. commited waste on the land we hold in trust. So the pie is shrinking compared to the people at the table, additionally, pie owners may not eat it…shall we let them eat cake instead?



But who are the pie owners? Well, in Blackstone’s time, and more so before that, only adult, white, entitled men…not women, not the poor, and for the most part no one of color could own a piece of that pie. So, there was enough to go around for those bon-vivants. How? Well, since about 51% of all people are male, and around 30% of those are children, and according to some, only 16% are white…by my guess (which may be wildly wrong), only about 2 to 3% of the population owned any pie at all.  In the last century, after realizing we were no longer living in Blackstone’s era, we wisely decided to open the door to the pie shop. 

Now most everyone wants a piece…if we are to be fair, that could be a mighty small sliver for the same old pastry! Doesn’t that make the former pie owners feel a bit slighted? So I do understand the resistance to fair housing from that perspective. 

But wait, there is another side to this. Some people have used leftover pie crusts to make a life or business out of the leavings. Now that things have changed a bit, some wonder if the change isn’t unfair in a different way. Do we really need a homogenous society? Aren’t ethnic neighborhoods cool in a way? What about those agents who wish to specialize in an ethnicity or other protected class…does it work both ways? I say yes, and that will seem unfair to some. We don’t need to eliminate diverse communities, we simply can’t restrict them either. In 2010 a number of gay, lesbian and straight REALTORS® (myself included), petitioned NAR for a change in the code of ethics to include Sexual Orientation (and later gender identity) as protected classes. Happily for me, that passed. Afterwards one of our group who had only marketed to Gay and Lesbian clients was shocked to find their marketing now broke the code. How unfair, they said. I replied, “Now that you are at the table, you have to share your pie too.” 


~John Mijac

*For a primer on what the concept of fair is with regards to AZ Contract law, read Jean Brauchjer’s article on Cowboy Contracts, Arizona Law Review.