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How Genetics Might Affect Real Property Rights

Published online by Cambridge University Press:  01 January 2021

Abstract

New developments in genetics could affect a variety of real property rights. Mortgage lenders, mortgage insurers, real estate sellers, senior living centers, retirement communities, or other parties in residential real estate transactions begin requiring predictive genetic information as part of the application process. One likely use would be by retirement communities to learn an individual's genetic risk for Alzheimer's disease. The federal Fair Housing Act prohibits discrimination based on disability, but it is not clear that it would apply to genetic risk assessments. Only California law explicitly applies to this situation and there have been no reported cases.

Type
Columns: Currents in Contemporary Bioethics
Copyright
Copyright © American Society of Law, Medicine & Ethics 2016

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References

Caskey, C.T. et al., “Adult Genetic Risk Screening,” Annual Review of Medicine 65 (2014): 1-17, at 7.CrossRefGoogle Scholar
In 2015, there were approximately 5.1 million Americans age 65 and older with Alzheimer’s disease. Alzheimer’s Association, 2015 Alzheimer’s Disease Facts and Figures (2015): 22.Google Scholar
Id. at 28.Google Scholar
Naj, A.C. et al., “Effects of Multiple Genetic Loci on Age at Onset in Late-Onset Alzheimer Disease: A Genome-Wide Association Study,” JAMA Neurology 71, no. 11 (2014): 13941404.CrossRefGoogle Scholar
Kelley, A.S. et al., “The Burden of Health Care Costs for Patients with Dementia in the Last 5 Years of Life,” Annals of Internal Medicine 163, no. 10 (2015): 729736.CrossRefGoogle Scholar
Alzheimer’s Association, supra note 2, at 45.Google Scholar
Rantakokko, M., Manty, M. and Rantanen, T., “Mobility Decline in Old Age,” Exercise Sports Science Review 41, no. 1 (2013):19-25; J.W.B. Clares, M.C. de Freitas, and C.L. Borges, “Social and Clinical Factors Causing Mobility Limitations in the Elderly,” Acta Paul Enferm 27, no. 3 (2014): 237–242.Google Scholar
These are individuals born between 1946 and 1964. As of 2015, there were about 75 million baby boomers, and it is estimated that about 11,000 of them are retiring each day. Pew Research Center, “Baby Boomers Retire,” December 29, 2010, available at <http://www.pewre-search.org/daily-number/baby-boom-ers-retire/> (last visited February 26, 2016).+(last+visited+February+26,+2016).>Google Scholar
See Gawande, A., Being Mortal: Medicine and What Matters in the End (New York: Metropolitan Books, 2014): at 103-104 (describing a visit by a senior resisting moving to an assisted living facility when “He looked around and saw not a single person without a walker.”).Google Scholar
45 C.F.R. § 164.508(b).Google Scholar
Rothstein, M.A. and Talbott, M.K., “Compelled Authorizations for Disclosure of Health Records: Magnitude and Implications,” American Journal of Bioethics 7, no. 3 (2007): 38-45; M.A. Rothstein and M.K. Talbott, “Compelled Disclosure of Health Information: Protecting Against the Greatest Potential Threat to Privacy,” Journal of the American Medical Association 295, no. 4 (2006): 2882–2885.Google Scholar
42 U.S.C. § 3601 et seq.Google Scholar
Pub. L. 93-383 § 808(b), 88 Stat. 633, 729 (1974).Google Scholar
Pub. L. 100-430, 102 Stat. 619 (1988). The Fair Housing Act is the only major federal statute that still uses “handicap” in its language, but for purposes of this article the term disability is used throughout because it has the same definition.Google Scholar
See Carlson, E. M., “Disability Discrimination in Long-Term Care: Using the Fair Housing Act to Prevent Illegal Screening in Admissions to Nursing Homes and Assisted Living Facilities,” Notre Dame Journal of Law, Ethics & Public Policy 21, no. 2 (2007): 363404.Google Scholar
See Rothstein, L. and Irzyk, J., Disabilities and the Law § 7:13 (Eagan, MN: Thomson Reuters, 4th ed., Oct. 2015).Google Scholar
See Ores v. Willow West Condominium Ass’n, 15 A.D.D. 275 (N.D. Ill. 1996) (denying motion to dismiss claim that home purchase was refused because parents had two children with Fragile X syndrome). See also 42 U.S.C. § 12112(b)(4) (comparable “association” provision of the ADA).Google Scholar
42 U.S.C. § 2603(d)(2); 24 C.F.R. § 100.203.Google Scholar
Rothstein and Irzyk, supra note 16, at §§ 7:8-7:11.Google Scholar
See Du Bois v. Association of Apt. Owners of 2987 Kalakauna, 453 F.3d 1175 (9th Cir. 2006) (permissible to request additional medical information from condominium owner seeking exemption from no-pet rule).Google Scholar
42 U.S.C.A. §3602(h). See K Care, Inc. v. Town of Lac du Flambeau, 510 N.W.2d 697 (Wis. Ct. App. 1993) (elderly individuals who were frail and required assistance in daily living considered covered under FHA).Google Scholar
24 C.F.R. § 100.202(c).Google Scholar
24 C.F.R. §§ 100.202(c)(1), (4)-(5).Google Scholar
Carlson, supra note 15, at 374-375 n. 54.Google Scholar
15 U.S.C. § 1691 et seq.Google Scholar
Greene, B., “Fair Housing Month Update: HUD Takes on Discrimination against People with Disabilities in Mortgage Lending,” April 15, 2013, available at <https://usodep.blogs.govdelivery.com/2013/04/15/fairhousingmonth/> (last visited February 26, 2016).+(last+visited+February+26,+2016).>Google Scholar
Passy, J., “Mortgage One Signs Agreement over Alleged Disability Discrimination,” November 17, 2015, available at <http://www.nationalmortgagenews.com/news/compliance-regulation/mortgage-one-signs-agreement-over-alleged-disability-discrimination/> (last visited February 26, 2016).+(last+visited+February+26,+2016).>Google Scholar
da Costa, P., “Lender Charged with Discrimination,” available at <http://www.bankrate.com/financing/mortgages/lender-charged-with-discrimination/> (last visited February 26, 2016).+(last+visited+February+26,+2016).>Google Scholar
Disability discrimination in residential insurance also has been held to violate the FHA. See Stanton, J.F., “The Fair Housing Act and Insurance: An Update and the Question of Disability Discrimination,” Hofstra Law Review 31, no. 1 (2002): 141-206, 153–155.Google Scholar
Disparate impact theory holds that facially neutral practices can adversely affect individuals based on proscribed criteria, such as race, color, religion, sex, national origin, age, or disability.Google Scholar
135 S. Ct. 2507 (2015).Google Scholar
29 U.S.C. § 794.Google Scholar
42 U.S.C. § 1437(f).Google Scholar
42 U.S.C. §§ 12101–12213.Google Scholar
EEOC, Enforcement Guidance on Pre-employment Inquiries under the Americans with Disabilities Act (1994). See Rothstein, M.A., Roberts, J. and Guidotti, T.L., “Limiting Occupational Medical Evaluations under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act,” American Journal of Law & Medicine 41, no. 4 (2015).Google Scholar
See Brooker v. Altoona Housing Auth., 2013 WL 2896814 (W.D. Pa. 2013) (determination of direct threat must be individualized); Groteboer v. Eyota Econ. Dev. Auth., 724 F. Supp. 2d 1018 (D. Minn. 2010) (lease termination in assisted living center justified by tenant’s dangerous operation of electric wheelchair).Google Scholar
See Herriot v. Channing House, 2008 WL 3929214 (N.D. Cal. 2008) (continuing care retirement community did not discriminate against individual who needed 24-hour care, but who wanted to remain in independent living).Google Scholar
Carlson, supra note 15, at 371.Google Scholar
42 U.S.C. § 1395i-3.Google Scholar
42 U.S.C. § 2000ff. See 75 Fed. Reg. 68,912 to 68,939, 29 C.F.R. §1635.Google Scholar
Regulations promulgated pursuant to GINA became effective January 10, 2011.Google Scholar
42 U.S.C. § 2000ff(4)(A)(i)-(iii).Google Scholar
42 U.S.C. § 2000ff-1(b).Google Scholar
See Roberts, J.L., “Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act,” Vanderbilt Law Review 63, no. 2 (2010): 439490.Google Scholar
Discrimination in long-term care insurance raises many of the same issues as discrimination by long-term care facilities, although the regulatory framework is likely to differ. See Rothstein, M.A., “Predictive Genetic Testing for Alzheimer’s Disease in Long-Term Care Insurance,” Georgia Law Review 35, no. 2 (2001): 707-733; C.D. Zick et al., “Genetic Testing for Alzheimer’s Disease and Its Impact on Insurance Purchasing Behavior,” Health Affairs 24, no. 2 (2005): 483–490.Google Scholar
National Human Genome Research Institute, Table of State Statutes Related to Genomics, available at <http://www.genome.gov/27552194> (last visited February 26, 2016). See also Prince, A.E.R., “Comprehensive Protection of Genetic Information: One Size Privacy or Property Models May Not Fit All,” Brooklyn Law Review 79, no. 1 (2013): 175–227.Google Scholar
California Genetic Information Non-discrimination Act (CalGINA), S.B. 559 (2011).Google Scholar
Cal. Gov’t Code § 12920 et seq.Google Scholar
Cal. Gov’t Code § 12955.Google Scholar
We will leave to another day the specifics of such legislation and whether it ought to be drafted to apply to “genetic information” as is used in GINA or whether it should more generally prohibit the use of any predictive health information.Google Scholar
National Human Genome Research Institute, supra note 47.Google Scholar