Each of them had individually purchased a co-op apartment before, so they knew it wasn't quite the same as buying a house or a condominium.

When someone "buys" a co-op, they become a shareholder in a corporation.  Unlike a condominium or a house, the purchaser does not actually own the real property.  Instead, they own shares of stock and a proprietary lease allocated to a specific apartment.  Because they do not own the building, shareholders have a landlord-tenant relationship with their co-op.

Like any corporation, co-ops are run by a board of directors elected by the shareholders, along with the assistance of a managing agent.  Shareholders may be subject to special restrictions imposed at the co-op board´s business discretion (e.g., subletting, having pets, carpeting their floors).  These rules and regulations, however, must not violate any existing rights under local, state, or federal law.

So in the summer of 2003, Latoni and Jorgensen jointly applied for a mortgage, signed a contract to buy the apartment and, at the request of the Sherman Square co-op board, filled out two co-op applications. They interviewed with the board in mid-September, scheduled a closing for Sept. 24 and began boxing up everything they owned.

But a few days before the closing, the seller's broker informed the couple that the board was concerned about Mr. Jorgensen's finances and would not approve the sale to them jointly.  Sherman Square would sell to Lisa Latoni, but not to Andrew Jorgensen and Lisa Latoni.

Had they been a married couple, they would have been approved or disapproved as a couple based on the strength of their joint finances.  But because they were unmarried, the board decided to evaluate their finances individually even though they were willing to be jointly liable on the mortgage.

The mortgage company could not and did not engage in marital status discrimination.  The federal Equal Credit Opportunity Act forbids such bias and requires lenders to consider the joint finances of two unmarried people who apply jointly for a loan just as it would a married couple.

But could the co-op legally refuse to do business with Latoni and Jorgensen as a couple and insist that only Latoni could be named on the lease?

Latoni and Jorgensen did not think so and therefore sued Sherman Square in state court.  Two months ago, a judge rejected the co-op board's claim that it's decision was normal business judgment and not discrimination.  As a result, the case will now proceed to trial.

It would seem that the couple should have a good chance of winning their case, since New York's fair housing law prohibits marital status discrimination as does New York City's local Human Rights law.

But would Latoni and Jorgensen prevail if they lived in another state?  Maybe, maybe not.

There are more than 5 million unmarried couples living together in the United States.  Although they pay taxes like everyone -- some of which are used to fund the operations of the Department of Housing and Urban Development -- unmarried couples cannot obtain help from that agency if they are victims of marital status discrimination.  You see, our federal fair housing laws do not protect unmarried Americans from marital status discrimination.

So unmarried renters or real estate purchasers must look to state laws for protection from discrimination. 

Only 23 states prohibit marital status discrimination in housing transactions. 

But in some of those 23 states, such as Wisconsin and Minnesota, the state supreme courts have ruled that unmarried couples are not protected by nondiscrimination laws which do include "marital status" as a protected categogy.  In contrast, the supreme courts of Alaska, California, Massachusetts, and Michigan have ruled that such fair housing laws do protect unmarried couples.

With nearly half of all households in the nation now headed by unmarried adults, it's time that we have a national policy protecting unmarried individuals, couples, and families from marital status discrimination in housing. 

Federal law already prohibits marital status discrimination in credit transactions.  Why not in housing transactions as well?

Lisa Latoni and Andrew Jorgensen, and the other five million unmarried couples like them, work hard and pay taxes just like married couples do.  The right to fair housing is too important to depend on which part of the country they live in.

Lest we forget, Americans are supposed to be part of one nation, indivisible, with liberty and justice for all. 

© Unmarried America 2005

Thomas F. Coleman, Executive Director of Unmarried America, is an attorney with 33 years of experience in singles' rights, family diversity, domestic partner benefits, and marital status discrimination.  Each week he adds a new commentary to Column One: Eye on Unmarried America. E-mail: coleman@unmarriedamerica.org. Unmarried America is a nonprofit information service for unmarried employees, consumers, taxpayers, and voters.