Renting To Families With Children: Complying With Fair Housing, Lead-Paint Laws

The Fair Housing Act (FHA) bans housing discrimination based on familial status. Therefore, your community may not exclude families with children under 18, unless you comply with strict rules governing senior communities.

That rule presents a problem for communities built before 1978, when the dangers of lead-based paint—particularly dangers to young children—were recognized and the use of lead-based paint was banned. Congress and a number of state legislatures acted to protect children living in the millions of housing units already affected. Those communities must comply with these federal and state mandates or face severe financial consequences.

In addition, communities face potential liability of millions of dollars if sued by residents with children harmed by lead-based paint. While an affected community may be tempted to avoid renting to those most at risk—families with young children—that practice is banned under fair housing law.

Example: Earlier this year, a court refused to dismiss a lawsuit for discrimination based on familial status, filed against a New York owner by a couple with a young child. The owner argued that he declined to rent them the unit because the couple seemed determined to get a puppy and the owner was worried about damage to the unit. Nevertheless, because of conflicting evidence that he allegedly was concerned about the issue of lead-based paint and “the added liability of a young child,” the court ruled that further proceedings were needed to resolve the dispute [Swinton v. Fazekas, March 2008].

Regardless of the presence of lead-based paint, communities may neither exclude nor discourage families with young children from living there. The law also bars discrimination in the terms and conditions of the residency, which means that you may not unduly restrict the use of your facilities by children.

In this month's lesson, we will give you seven rules to help you understand what you must do to comply with fair housing law when it comes to families with children. Then, you can take the Coach's Quiz to see how much you have learned. Finally, in the Legal Update (see p. 8), we'll discuss the federal lead-based paint disclosure law and recent enforcement activity.

WHAT DOES THE LAW SAY?

Federal fair housing law bans discrimination based on familial status, which includes families with a child under the age of 18, and pregnant women.

Those rules apply to all communities, including those built before 1978, when the federal ban on lead-based paint went into effect. At that time, three-quarters of the housing stock in the country—approximately 64 million dwellings—contained some lead-based paint, according to HUD and the Environmental Protection Agency (EPA). Currently, HUD estimates that 24 million homes have significant lead-based paint hazards.

Young children are particularly vulnerable to lead poisoning, which can cause permanent damage to developing brains, leading to reduced intelligence and behavioral problems. In addition, lead can cause abnormal fetal development in pregnant women. According to the Centers for Disease Control and Prevention (CDC), about 310,000 of the nation's 20 million children under the age of 6 have blood lead levels high enough to impair their ability to think, concentrate, and learn. The CDC says the major sources of lead exposure among children in the United States are lead-based paint and lead-contaminated dust found in deteriorating buildings.

Nevertheless, federal fair housing law prohibits communities from excluding families with young children, or pregnant women, from units where lead-based paint hazards have not been controlled, according to guidance issued by HUD. If a unit has not undergone lead-hazard control treatments and the family chooses to live in the unit, HUD says that your community must disclose the condition of the unit, but may not decline to allow the family to live there.

In the same vein, according to HUD, it would be a violation of fair housing law for an owner to terminate the tenancy of a family residing in a unit in which lead-based paint hazards have not been controlled, despite the family's wishes, because of the presence of young children in the household. A community may, however, offer transfers to other units where lead-based paint hazards have been controlled or require a family to move to another unit temporarily while a lead-based paint hazard is addressed.

Example: A Massachusetts owner was accused of violating federal and state fair housing law by refusing to rent to a family with children because of the presence of lead-based paint in the unit. The court ruled that the owner's conduct may amount to discrimination based on familial status, as well as Massachusetts law, which specifically prohibits discrimination based on the landlord's desire not to remedy lead-based paint hazards [McFadden v. Moll, May 2003].

COACH'S TIP: Federal law does not require abatement of lead-based paint in privately owned communities, but you should check your state and local laws, which may impose such requirements. In Massachusetts, for example, the lead law requires the removal or covering of lead paint hazards in homes built before 1978 where any children under age 6 live.

7 RULES FOR COMPLYING WITH FAIR HOUSING LAW WHEN RENTING TO FAMILIES WITH CHILDREN

Rule #1: Do Not Refuse to Rent to Families with Children

Unless your community complies with the requirements to qualify as senior housing, you may not refuse to rent a unit based on familial status. Under federal law, familial status includes a child under age 18 living with a parent or guardian, and an individual authorized by the parent or guardian. It also includes pregnant women and an individual in the process of securing legal custody of a child under age 18.

The safest course when dealing with familial status is to focus on the presence of a child under the age of 18, including foster children, grandchildren, and children in temporary living arrangements with the written permission of a parent or guardian, says fair housing expert Nanette Cavarretta. To avoid potential fair housing complaints, Cavarretta recommends that you consider any prospect or resident who is pregnant or residing with a child under the age of 18 to have familial status under fair housing law.

Even if you may have legitimate concerns that children may damage your property, you may not tell prospects that you won't rent to families with children—or even that you don't like renting to families with children. Likewise, it doesn't matter if you are motivated by concern over the children's safety or welfare. The way to handle those concerns is through your community's rules (see Rule #7), not by unlawfully excluding families with children from living in your community.

COACH'S TIP: If your community complies with strict rules to qualify as senior housing, it does not have to rent to families with children, although it must comply with fair housing requirements in all other respects. For more information on senior housing, see “How to Avoid Fair Housing Trouble in Senior Communities,” Coach, March 2007.

Rule #2: Do Not Discourage Families with Children from Residing in Your Community

Beyond an outright refusal to rent to families with children, statements that discourage families with children from residing in your community are banned under fair housing law.

The FHA makes it illegal to “make, print, or publish…any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on…familial status” [42 USC §3604(c)]. The law applies to both oral and written statements. A violation occurs when you use words or phrases that would suggest to an ordinary listener that adults are preferred or children are disfavored in your community.

Example: In response to an ad, a single woman with two young children called an Illinois owner about a two-bedroom unit. The owner asked how many people were in her family, and the prospect said one adult and two small children. The owner asked if the prospect was married. When she said no, the owner refused to show her a unit, because the prospect “has two children and no husband” and the owner has “to pay her mortgage.”

Ruling that the owner's statements expressed a preference based on familial status, the court overturned an administrative ruling that the owner was more concerned with financial matters than with the prospect's family. The court said that the owner refused to rent the unit only with the knowledge that the prospect was a single mother with two small children, so an ordinary listener would conclude that the owner assessed the prospect's ability to pay based on her familial status, not on her financial situation [White v. HUD, February 2007].

Review your advertising and marketing materials to ensure they don't express a preference based on familial status. It may be obvious that an ad stating “No children allowed” would violate the law. But you also risk a fair housing complaint if your advertising describes your community as an “adult community” or “perfect for singles.”

COACH'S TIP: You may affirmatively market units to families with children where lead-based paint hazards have been controlled, without violating fair housing laws, according to the HUD guidance. Housing providers may orally or through advertising state that such units are available or that families with children are welcome for those units.

Rule #3: Do Not Unreasonably Limit Number of Children per Unit

The FHA allows communities to set reasonable restrictions on the number of people who are permitted to occupy a dwelling. But you risk a fair housing complaint if your occupancy standards are arbitrary or if you apply them inconsistently. One way to ensure that your occupancy standards are reasonable is to meet federal guidelines, which generally allow a community to set a two-person-per-bedroom limit, subject to special circumstances and local law.

Reasonableness is the key to applying occupancy standards, according to fair housing attorney Avery Friedman, who warns against setting arbitrary rules based on your judgments about young families. For example, Friedman suggests it would be unreasonable to deny a two-bedroom unit to a mother with a young son and daughter simply because you believe that children of opposite sexes belong in separate rooms.

Cavarretta agrees, noting that applying occupancy standards is among the most difficult issues in dealing with families with children. She advises against an overly technical application of occupancy standards that might trigger a complaint—for example, by requiring a husband and pregnant wife with a one-bedroom unit to move to a two-bedroom unit after the baby has its first birthday. If called upon to explain the reasonableness of its actions, Cavarretta suggests, the community would be hard pressed to justify why the larger space was necessary based upon the difference between a 9-month-old and a 1-year-old.

COACH'S TIP: For an in-depth discussion of occupancy standards, see “Avoiding Trouble When Dealing with Occupancy Standards, Families with Children,” Coach, January 2007.

Rule #4: Do Not Steer Families with Children into Particular Areas or Units

Guiding families with children to—or away from—certain units or areas within your community is a violation of fair housing law. The FHA prohibits “steering—that is, encouraging or discouraging prospects to live in a particular part of a community because of their race, sex, color, national origin, disability, religion, or familial status.

Don't steer families with children to a particular area, even if you think the children would be happier there. For example, Cavarretta warns, you shouldn't encourage a family with children to choose a unit near the playground simply because it would be more convenient for them.

Likewise, you may not steer families with children away from units on upper levels of your community. Even if you have legitimate concerns over the safety of young children—if those units have balconies, for example—you may not discourage or refuse to allow families with children to live there.

Example: A California owner was accused of steering a family with a young child away from a second-floor unit. He allegedly expressed concerns about safety hazards to the child posed by the balcony and stairs leading to the unit, and said a first-floor unit—that was not currently available—would be more suitable. The court refused the owner's request to dismiss the case, ruling that further proceedings were needed to determine whether the owner's comments amounted to unlawful steering [Drenik v. Ohanesian, August 2006].

COACH'S TIP: Under the HUD guidelines, a community does not engage in unlawful steering by recommending a unit to families with children under the age of 6 where lead-based paint hazards have been controlled. Where lead-based paint hazards have been controlled, you may hold open vacant apartments for families with young children and may offer such families a preference.

It is also lawful to inform the family of the availability of a waiting list for units where lead-based paint hazards have been controlled. If only a few units where lead-based paint hazards have been controlled are available at any given time, HUD recommends that the units be scattered throughout a community rather than segregated in one area.

Rule #5: Do Not Impose Special Conditions upon Families with Children

Fair housing law prohibits discrimination “in the terms, conditions, or privileges” of rental units. Therefore, you may not impose special obligations on families with children even if you are concerned about increased liability risks posed by and to young children.

You may not require families with children to pay additional security deposits to cover potential damage caused by the children, warns Cavarretta. Nor may you require them to sign liability waivers to protect you from being sued for injuries sustained by the children because of a condition on the property.

Rule #6: Do Not Establish Rules that Unreasonably Burden Families with Children

Your community may set reasonable rules to protect children's safety and respect their neighbors' right to enjoy the property. But you must be careful that your rules do not unfairly single out children.

Don't adopt lease clauses and community rules that specifically ban children from doing things you don't want adults to do either. To avoid triggering a fair housing complaint, consider adopting a rule that targets the problem behavior, rather than its source. For example, if you are concerned about children misbehaving or making too much noise in hallways, consider adopting a rule that bans all loud, unruly behavior in the hallways, instead of specifically targeting children.

Even if your rules don't unfairly single out children, you have to ensure that you don't enforce your rules in a discriminatory manner. It would be a violation of fair housing law if, for example, you enforced rules against disruptive behavior in hallways only against children playing in the hallways. Consistent application of your rules is the key to protecting your community from discrimination complaints from families with children.

Example: Several families with children sued a New York owner, alleging discrimination based on familial status. The families claimed that the owner had adopted and enforced a rule prohibiting residents and their guests from using the grounds around the building “as a place to congregate or allow children to play.” The community, composed of several hundred units, had a playground and other common areas where residents and others could congregate.

The court dismissed the case, ruling that the families failed to prove that the owner had enforced the rule in a way that discriminated against families with children. The evidence showed that the owner sent violation notices not only to the families whose children were playing in the restricted area but also to adult residents who were playing football or otherwise causing disturbances there.

Furthermore, the court observed, the owner sent the families notice of the rule violations not because of some technical violation but because their children were doing something dangerous, either to themselves or to property, or because they were disturbing other residents [Khalil v. Farash Corp., September 2006].

COACH'S TIP: If children damage common areas, fair housing law does not prevent you from taking action against parents. “Fair housing law doesn't cover brats,” Cavarretta observes. Just make sure you can document that your community consistently enforces rules related to property damage, to counter a discrimination complaint based on familial status.

Rule #7: Make Sure Child-Targeted Rules Are Reasonable and Necessary

Your community may establish rules targeting children's use of your facilities, such as your pool or fitness center, as long as the rules are reasonable and necessary to protect their safety.

For example, you have legitimate concerns about children's safety if you have a pool at your community. While it may allay your fears to ban children from using the pool under any circumstances, adopting such an unreasonable rule would amount to discrimination “in the terms, conditions, or privileges” of rental units, based on familial status.

But it would be lawful to impose conditions that are both reasonable and necessary to protect children's safety when using your pool, such as requiring adult supervision for children under a certain age. Having an objective source—such as state and local law—will help prove any child-targeted rules are reasonable and necessary.

Fair Housing Act: 42 USC §3601 et seq.

HUD guidance: Requirements Concerning Lead-Based Paint and the Fair Housing Act, www.hud.gov/offices/lead/library/enforce-ment/fheo_lead.pdf

Coach Sources

Nanette Cavarretta, CAPS, CAM: Property Management Education Institute; Winter Springs, FL

Avery Friedman, Esq.: Chief Counsel, Fair Housing Council; Cleveland, OH

Robin Hein, Esq.: Attorney at Law; Atlanta, GA

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