Fair Housing for the Ages: Renting to Millennials, Boomers, and Everyone in Between

In this month’s lesson, the Coach reviews how fair housing law may affect the way you attract and rent to people of different generations. Although federal fair housing law does not ban age discrimination, we’ll look at the ways that fair housing law protects people of particular generations—and how those protections cut across several generations.

Based on their sheer numbers, Millennials and Baby Boomers—the two largest groups—have garnered the most attention. For decades, Baby Boomers—those born between 1946 and 1960—were the largest generation, but they’ve recently been pushed out of the top spot by the Millennials, those born between 1981 and 1996.

Based on generational differences, fair housing laws may affect those in each age group in different ways. Millennials are more racially and ethnically diverse and, based on their age, more likely to be living with minor children, than older generations. When dealing with Millennials, it’s important to keep in mind fair housing rules banning discrimination based on race, national origin, and familial status.

For Boomers—and older generations—the ban on disability discrimination takes on increasing importance as the likelihood of disability increases with age. Fair housing law not only makes it unlawful to exclude or treat people with disabilities differently than others, but also to deny requests for reasonable accommodations and modifications needed by individuals with disabilities to fully enjoy their home.

Meanwhile, multifamily housing continues to be affected by the increasing number of multigenerational households. A record 64 million Americans lived in multigenerational households in 2016, according to a new Pew Research Center analysis of census data. Whether driven by financial considerations, cultural reasons, or health concerns, the rising number of multigenerational families will require increased attention to fair housing rules banning discrimination based on race, national origin, familial status, and disability.

In this lesson, we’ll take a close look at how to comply with fair housing law when dealing with each generation. Then you can take the Coach’s Quiz to see how much you’ve learned.

Editor’s Note: Determining where one generation ends and another begins isn’t an exact science. There’s no official cut-off date between generations, except for the Baby Boomer generation, designated by the Census Bureau as those born between 1946 and 1964. Despite variations in the dates used by various sources, this lesson defines the generations according to a recent analysis by the Pew Research Center.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination based on race, color, religion, sex, national origin, familial status, or disability—what’s known as “protected classes.” These rules, which cut across generations, forbid you from turning people away or treating them differently than others, based on any of these characteristics, whatever their age.

Federal fair housing law bans discrimination against applicants and residents because they—or someone they’re associated with—is a member of a protected class. Just as it’s unlawful to discriminate against a black resident because of her race, for example, it’s unlawful to discriminate against a white resident because her family members or friends are black.

The same goes for people with disabilities. HUD says that the FHA’s disability provisions were intended to prohibit not only discrimination against the named tenant, “but also to prohibit denial or housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants or other associates with disabilities.”

Although the FHA does not specifically prohibit age discrimination, it’s often included in state and fair housing local laws. Most broadly apply to individuals aged 18 and older, prohibiting discrimination against adult applicants because they are considered either too young—or too old—to live in a particular community. In a few states, the focus is on protecting older people from housing discrimination, most commonly by defining “age” to mean individuals who are 40 and over.

Under federal law, the focus is on protecting children from housing discrimination. Specifically, the FHA bans discrimination based on familial status, which includes pregnant women and one or more children under 18 living with:

·      A parent;

·      An individual with legal custody;

·      An individual who has the written permission of the parent or custodian;

·      A pregnant woman;

·      An individual in the process of securing legal custody.

In a nutshell, that means that you can’t discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household.

There’s only one limited exception, which applies to senior housing communities that qualify as “housing for older persons” (HOPA). In general, qualified senior housing communities are exempt from the familial status provisions, which means that they may lawfully restrict children under age 18 from living there.

To qualify for the HOPA exemption, a community operating as housing for persons who are 55 years of age or older must satisfy each of the following requirements:

·      At least 80 percent of the occupied units must have at least one occupant who is 55 years of age or older;

·      The community must publish and adhere to policies and procedures that demonstrate the intent to operate as “55 or older” housing; and

·      The community must comply with HUD’s regulatory requirements for age verification of residents.

Unless they satisfy those requirements, communities may not enforce “adult only” policies or impose age restrictions to keep children from living there. Furthermore, the exemption applies only to familial status—senior housing communities must still comply with fair rules banning discrimination based on race, color, religion, sex, national origin, and disability.

COMPLYING WITH FAIR HOUSING LAW

WHEN DEALING WITH EACH GENERATION

MILLENNIALS — 1981-1996 — AGED 21-37

Key Fair Housing Issues: Race, National Origin, Familial Status, Occupancy Policies

Millennials, born between 1981 and 1996, dominate the ranks of the nation’s renters—18.4 million of the estimated 45.9 million that rent, according to the Pew Research Center. Overall, Millennials are more diverse than the generations that preceded them, with nearly 45 percent being part of a minority race or ethnic group (that is, a group other than non-Hispanic, single race white), according to the Census bureau.

When dealing with Millennial renters, you’ll need to pay particular attention to fair housing rules banning discrimination based on race and national origin. It’s unlawful to refuse to rent to someone because of her race—or the race of someone she’s associated with.

Example: In April 2018, HUD charged the owner and manager of a trailer park in Belden, Miss., with violating fair housing law by refusing to rent a lot to an interracial married couple with two children. According to HUD’s charge, the manager rented a lot to the wife, believing her to be white. However, the day after the family moved in and the manager learned that her husband is African American, he allegedly called to demand that the family move out. During the phone call to the woman, the manager allegedly said, “White and black shacking” was problematic for his community, his church, and his mother-in-law.

Meanwhile, more than a million Millennial women are becoming moms each year, according to Pew researchers. While they now account for the vast majority of annual U.S. births, Millennial women are waiting longer to become parents than prior generations did. And many are single moms—in 2016, Millennials for the first time surpassed all other generations in number of households who were single mothers, the researchers reported.

This will require you to pay attention to fair housing rules banning discrimination based on familial status. The rules ban discrimination based on the presence of a child under 18 who may be living with one or both parents, relatives, and others else with written permission to care for the child. It also applies to pregnant women and those in the process of seeking custody of a child, including noncustodial parents, foster parents, or adoptive parents.

To comply with the familial status rules, you’ll also have to be careful about how you apply your occupancy standards when dealing with families with babies and other very young children. Although HUD considers “two persons per bedroom” to be reasonable occupancy standard, it’s only a rule of thumb, and HUD will consider other factors, including the age of the children involved in a particular case, which may make the two person/bedroom standard unreasonable under the circumstances.

Example: In May 2018, the owner and manager of a California community agreed to pay $20,000 for allegedly evicting a couple with a newborn because of an “adults-only” policy. The couple filed the discrimination complaint with state officials, alleging that the community required them to move out because “children weren’t allowed” and they had exceeded the “2 persons” limit for their one-bedroom.

“Families are entitled to housing and cannot be targeted for eviction because they welcome a new child into their home,” Kevin Kish, Director of the California Department of Fair Employment and Housing, said in a statement. “It is illegal for landlords to use occupancy rules as an excuse to reduce the presence of families with children.”

GENERATION X — 1965-1980 — AGED 38-53

Key Fair Housing Issues: Familial Status, Occupancy Policies, Play Rules

Born between 1965 and 1980, Generation X is sandwiched between the two largest generations—Millennials and Baby Boomers. Currently aged 38-53, there are fewer than 65 million Gen Xers, compared with their older and younger counterparts at more than 80 million each. Gen Xers are the bridge between the predominantly white Baby Boomers and more diverse Millennials, according to Pew researchers. They also fall in the middle of demographic measures.

This generation is also in the middle in the number of renters. Of the estimated 45.9 million households that rent their homes, 12.9 million Gen X households are renters, as compared to the estimated 18.4 percent of Millennials and 10.4 million Baby Boomers, according to Pew researchers. 

When dealing with Gen X renters, you’ll still need to pay attention to fair housing rules banning discrimination based on familial status. Though Millennials account for the vast majority of new moms, Gen Xers are closer to Millennials than Baby Boomers when it comes to living with children under 18. Of the 8.9 million households headed by a single mother, for example, about 3.9 million were Gen Xers, only slightly below Millennials at 4 million. In comparison, Baby Boomers who were single mothers with young children and heading a household numbered only 0.6 million.

Occupancy standards will continue to be an issue—particularly with families with multiple children. Despite the general two persons/bedroom standard, HUD will consider other factors, including the size of the bedroom, the size and configuration of the unit, and other relevant factors, which could make it reasonable to allow more people to live in a particular unit.

Example: In June 2018, HUD charged an Alabama property management company and its property manager with violating the fair housing law by refusing to rent a single-family, three-bedroom house to a woman because she has three young children. HUD’s charge alleged that the community’s rental policies discriminate against families with children by limiting the number of children to two or fewer, even when rental homes have three or more bedrooms, enough to accommodate families with more than two children.

“Rules that limit the number of children in housing violate the Fair Housing Act,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s action reaffirms HUD’s commitment to protecting the right of families with children to obtain the housing of their choice.”

Disputes over the community’s rules—or the way the rules are enforced—can also lead to fair housing trouble based on familial status. Fair housing law doesn’t prevent you from enforcing reasonable rules governing common areas, but it’s unlawful to enforce rules that have an unreasonable discriminatory effect on families with children.

Example: In April 2018, the owner and former manager of a California community agreed to pay $135,000 to settle allegations of familial status discrimination involving an alleged rule prohibiting children from playing outside in the evenings. State officials filed the case on behalf of four families, who alleged that the community issued a house rule that prohibited children from playing outside after 8 p.m., and harassed and threatened the tenants and their minor children on the protected bases of national origin, gender/sex, ancestry, and familial status.

“Overly restrictive rules limiting the activities of daily life for families with children violate the California Fair Employment and Housing Act,” DFEH Director Kevin Kish said in a statement. “DFEH is committed to protecting California’s families with children from such discrimination.”

BABY BOOMERS — BORN 1946-1964 — AGED 54-72

Key Fair Housing Issues: Disability, Familial Status, 55+ Housing

Though no longer the largest generation, Baby Boomers—born between 1946 and 1964—come in at a close second behind Millennials, at roughly 76.4 million, according to Pew researchers.

Based on their sheer numbers, Baby Boomers are continuing to make an impact as they age. The oldest began turning 65 in 2011 and all will be older than 65 by 2030, the Census Bureau reported. This will expand the size of the older population so that one in every five residents will be retirement age.

“The aging of Baby Boomers means that within just a couple decades, older people are projected to outnumber children for the first time in U.S. history,” Jonathan Vespa, a demographer with the U.S. Census Bureau, said in a statement. “By 2035, there will be 78.0 million people 65 years and older compared to 76.4 million under the age of 18.”

Government agencies are scrambling to get ready for aging Boomers. Among them: the Social Security Administration, which must be ready to address its increasing workloads due to the 80 million Baby Boomers entering their disability-prone and retirement years by 2022.

Likewise, you’ll need to be ready for the increased demand for disability-related accommodations and modifications. Although Boomers have a longer life expectancy than previous generations, they have higher rates of chronic disease, more disability, and lower self-rated health than members of the previous generation at the same age, according to a study published in the JAMA Internal Medicine journal. That means that disability discrimination claims—already the most common source of fair housing trouble—are likely to rise in coming years.

The FHA prohibits communities from excluding individuals with disabilities or discriminating against them in the terms, conditions, and privileges of the tenancy. Among the most common form of discrimination is failure to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. In requiring that the request be reasonable, the law permits communities to deny a requested accommodation if it would impose an undue financial or administrative burden on the community or result in a fundamental alteration of its operations.

The FHA also requires communities to permit applicants or residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises. Communities must consider requests for reasonable modification not only to the interior of a unit, but also to lobbies, main entrances, and other public and common use areas of buildings.

Meanwhile, developers see opportunity in the growing number of Baby Boomers, the youngest of whom turns 55 next year. The National Association of Home Builders (NAHB) estimates that number of households headed by someone age 55+ will increase through 2019 to account for more than 45 percent of all U.S. households. NAHB says that the growing ranks of empty-nesters, new retirees, grandparents, and active seniors create an opportunity for builders across the country to meet the special needs and preferences of 55+ buyers looking to relocate, downsize their homes, or find a new senior-friendly community.

Many Boomers choose to age in place, but those looking to move may be considering a 55-and-older community. Whether described as a 55+ community, age-restricted housing, an “active adult” community, this type of senior housing is exempt from the familial status provisions—which means they may lawfully restrict children under 18 from living there. To qualify for the exemption, however, communities must comply with a number of technical administrative requirements. Failure to comply means loss of the exemption, leaving the community open to a discrimination claim based on familial status by doing anything to exclude or discourage families with children under 18 from living there.

Example: In 2016, the owners and managers of a Las Vegas mobile home park agreed to $15,000 to settle a fair housing complaint alleging discrimination against an elderly resident’s pregnant daughter-in-law. In her HUD complaint, the resident alleged that the community improperly claimed to be housing for older persons and told her that her son and daughter-in-law, who were also her live-in caretakers, had to move out after learning that her daughter-in-law was pregnant.

“Landlords and property owners have an obligation to treat every applicant the same, including pregnant women and families with young children,” according to a statement by a HUD spokesman. “Housing providers may not exclude pregnant women and children under 18 unless the housing meets all requirements for exempt housing for older persons.”

SILENT GENERATION — BORN 1928-45 — AGED 73-90

GREATEST GENERATION — BORN BEFORE 1928 — AGED 91+

Key Fair Housing Issues: Disability, Senior Housing, Familial Status

As the population ages, the number of people age 65 and over is growing, from 35 million in 2000, to 49.2 million in 2016, according to the Census Bureau. About 10 percent of the nation’s renters are headed by members of the Silent or Greatest Generation, according to Pew researchers.

There are distinct differences between the two generations of the oldest Americans—the Silent Generation and the Greatest Generation—but they have much in common when it comes to fair housing compliance. Of primary importance: the FHA’s disability provisions, which make it unlawful to discriminate against applicants or residents because they—or a member of their household—have a disability.

Example: In August 2017, an Indiana community agreed to an undisclosed settlement to resolve allegations of disability discrimination by denying housing to an applicant because of her elderly mother’s disability. After disclosing her mother’s condition, the woman alleged that the community denied her application because the community wasn’t handicapped accessible and “it will be a liability to offer you a unit that is not accommodating to everyone in the household.”

You could also face a fair housing complaint for denying disability-related requests for reasonable accommodations or modifications needed by a member of the resident’s household.

Example: In March 2018, the owners and operators of a 134-unit community in Tennessee agreed to pay $52,500 to resolve allegations of disability discrimination and retaliation against a resident and members of her household for requesting accommodations and modifications to the community’s parking lot. In its complaint, the Justice Department alleged that the long-term resident lived there independently until she had two strokes, which affected her ability to walk and to take care of herself. After she moved back in with family members, the community allegedly denied their requests for a reasonable modification to remove a concrete parking bumper and a reasonable accommodation of two assigned parking spaces. The community was also accused of trying to evict them in retaliating for filing a fair housing complaint.

Another common denominator: All members of the Silent Generation and the Greatest Generation would qualify for senior housing—not only 55+ communities, but also communities intended for and solely occupied by persons 62 years of age or older. Though qualified senior communities are exempt from the familial status provisions, they could still face a fair housing complaint for discrimination based on disability—or any other characteristic protected under federal, state, or local law.

Example: In October 2015, the owners and managers of an Illinois continuing care retirement community agreed to pay $255,000 to settle a disability discrimination case involving its policies governing the use of its dining facilities.

In its complaint, the Justice Department alleged that since 2011, the community instituted a series of policies that prohibited, and then limited, residents’ ability to dine in the communal dining rooms of the independent living wing of the facility if they required assistance eating due to a disability. The complaint also alleged that the community maintained a policy prohibiting residents of the independent living wing from hiring live-in caregivers and refused to grant reasonable accommodations to that policy that would have allowed residents with disabilities to use and enjoy their apartments.

Example: In June 2015, a continuing care retirement community in Virginia agreed to pay a $390,000 settlement in another disability discrimination case involving dining policies. The complaint alleged that beginning in May 2011, the community instituted a series of policies that prohibited, and then limited, residents in its assisted living, nursing, and memory-support units from eating in dining rooms or attending community events with independent living residents. The complaint also alleged that the community discriminated against residents who used motorized wheelchairs by requiring them to get the community’s permission, pay a non-refundable fee, and obtain liability insurance.

Next Up: Generation Z — born since 1997 — Aged 21 and under

The newest generation—those born after 1997—has yet to be named. Some call them the post-Millennials, while others call them Generation Z—or the iGeneration. No matter which label sticks, the newest generation will be much more racially and ethnically diverse than previous generations. By 2020, the Census Bureau projects that less than half of the children in the United States will be non-Hispanic, white alone (49.8 percent). In comparison, about 72 percent of children are projected to be white alone, regardless of Hispanic origin.