What NOT to Do When Dealing with Families with Children

This month, Fair Housing Coach reviews fair housing protections based on familial status. The phrase “familial status” isn’t that common in everyday life, so it’s easy to get confused over exactly what it means and whom it covers.   

     For one thing, it covers more people than you think. It’s common to refer to the rules as protecting families with children, but the ban on discrimination based on “familial status” extends well beyond that to cover applicants and residents based on the presence of a child 18 and under in the household. It also protects pregnant women and those in the process of obtaining legal custody of a child under the age of 18.

     And it covers more than you think. In the most basic terms, the law bans communities from denying housing to families with children. But you’ll have to do more than that to avoid fair housing trouble based on familial status since discrimination claims may arise from the way you advertise vacancies, show apartments, apply occupancy standards, and enforce community rules, to name a few aspects of day-to-day property management.

     Finally, it’s important to know the rules before you rely too heavily on the exception for senior housing. Although fair housing law recognizes a limited exception to the familial status rules for senior housing communities, it applies only if the community satisfies specific requirements; otherwise, the community may be liable for restricting or outright excluding children from living there.

     In this month’s lesson, we’ll review the law governing familial status—whom it covers, what it covers, and when the senior housing exception applies. Then we’ll suggest eight rules for what not to do when dealing with families with children—that is, potential trouble spots and how to handle them. Finally, you can take the COACH’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits housing discrimination based on race, color, national origin, religion, sex, disability, or familial status.

     The familial status provisions are aimed at preventing discrimination based on the presence of a child or children under 18 in the household. The FHA defines “familial status” as one or more children under the age of 18 “being domiciled with” any of the following individuals:

• A parent or another person having legal custody of the child or children; or
• The designee of such parent or other person having such custody, with the written permission of such parent or other person.

     The familial status provisions also apply to pregnant women and anyone in the process of securing legal custody of a child under 18.

     The law’s broad protections apply when there’s one or more children under 18 living in the household. The child may be living with one or both birth parents, whether married, divorced, or single. Or it could be the child’s adoptive parent, foster parent, or legal guardian. Individuals with legal custody may include grandparents, other family members, and others approved by the courts. It also includes anyone designated by the parent or legal guardian with written permission to have custody of the child or children.

     Senior housing exemption. Fair housing law recognizes an exception to the familial status provisions that allow retirement communities to lawfully exclude children. But it’s a limited exception—it applies only if the community satisfies strict legal requirements to qualify as “housing for older persons.” Unless they do so, communities may not simply declare themselves as “adult communities” or exclude families with children under 18 from living there.

8 RULES FOR AVOIDING FAIR HOUSING CLAIMS

BASED ON FAMILIAL STATUS

Rule #1: Don’t Deny Housing to Households with Children

Though it has been unlawful for 25 years, communities continue to run afoul of fair housing provisions by refusing to rent to applicants because they have one or more children living with them. Unless the community qualifies as senior housing, it’s unlawful to screen out or deny housing to families with children.

     Some housing providers have strong reservations against renting to households with children because of concerns about potential noise complaints from crying babies or boisterous youngsters, damage to the unit or common areas from playing children, or liability for falls or other accidents involving young children. Though you may believe your concerns are justified, you can’t refuse to rent to an applicant simply because there are children living within the household. In fact, simply expressing a preference against families with children can lead to a fair housing complaint.

     Example: In July 2013, HUD charged a Minnesota landlord with violating federal fair housing law for allegedly refusing to rent a unit to a woman and her young daughter. According to HUD’s charge, the woman responded to a local newspaper ad for a one-bedroom apartment, which was located above a retail store. When she said that the unit was for her and her 1-year-old daughter, the owner allegedly said that he had rented to families before and it “just doesn’t work.” During HUD’s investigation, the owner allegedly admitted that he told the woman he preferred to rent the apartment to adults, not families with children. According to HUD, the owner later rented the unit to an applicant without minor children; the lease included a provision limiting the unit to one person only. The case is scheduled to be heard by an administrative law judge unless either party elects to have the case heard in federal court.

     “Refusing to rent housing to families with children is against the law unless the property legally qualifies as housing for older persons,” Bryan Greene, HUD’s Acting Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to take action against property owners who discriminate against prospective tenants because of their family status” [Secretary, HUD v. Strom, July 2013].

     Example: In January 2013, a New Hampshire real estate agent agreed to pay $9,000 to settle a complaint that he refused to rent a two-bedroom apartment located above his office to a single woman with a 14-year-old child. When the woman inquired about the unit, the agent allegedly told her that families with children hadn’t worked out in the past because his business is below the rental unit. According to HUD, the agent allegedly screened applicants and showed available apartments only to persons who didn’t have children. Under the settlement, the defendants agreed to pay $3,000 to the mother; a $5,000 civil penalty; and $1,000 to three others allegedly affected by the policy [Secretary, HUD v. Walker, January 2013].

Rule #2: Don’t Claim Senior Housing Exemption Unless You Qualify

Fair housing rules exempt senior housing communities from the familial status provisions, but only if the community satisfies all the legal requirements to qualify as “housing for older persons.” Otherwise, it’s unlawful to enforce an “adults-only” policy or to adopt rules to exclude children under age 18.

     Example: In August 2013, HUD announced that the owners of a Michigan community agreed to pay $100,000 to a fair housing organization to resolve complaints of housing discrimination against families with children. The case began when a fair housing organization filed a HUD complaint, alleging that its testing revealed that the community’s property manager refused to rent to families with children. In several of the tests, the property manager allegedly told testers that the complex was a community for persons 55 years of age and older and that she couldn’t accommodate persons with children.

     “For 25 years, federal law has made it illegal to deny housing to families simply because they have children. Likewise, the Fair Housing Act sets forth the standards ‘55 and over’ communities must meet if they are to exclude families with children,” Bryan Greene, HUD’s Acting Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to educate the public, seek voluntary compliance, and enforce these provisions of law” [Conciliation Agreement, Fair Housing Center of Metropolitan Detroit and Shelby Park Manor 4 & 5, Inc., August 2013].

     Example: In August 2013, the owners of a Michigan community agreed to pay $47,500 to settle allegations that they enforced an illegal occupancy policy and made statements in their advertising expressing a preference for senior-aged tenants, according to an announcement by the Fair Housing Center of Southwest Michigan.

     The case was based on a complaint by a couple who alleged that they’d been evicted from their apartment because the owner and apartment manager preferred to rent to senior citizens of age 55 and over. The couple also alleged that the apartment manager had refused to move them into a two-bedroom apartment for fear that the couple’s granddaughter would come to live with them.

     After three years of litigation, the parties agreed to a settlement agreement, requiring the community to refrain from applying its former “one person or couple per bedroom” occupancy policy and to refrain from using the terms “senior,” “seniors,” “adult community,” or “mature community” in any of its advertising.

Rule #3: Don’t Treat Prospects Differently Because They Have Children

Treat all prospects consistently, regardless of whether there are children in the household. It’s unlawful to impose different terms and conditions of a tenancy on households based on familial status, so you can’t make the leasing process more cumbersome, or quote higher rental terms, in an effort to discourage applicants with children from renting in your community.

     Example: In March 2012, the owner of a Pennsylvania apartment complex agreed to pay $15,000 to settle claims that the development’s on-site manager violated fair housing law by charging higher rent from—and indicating a preference against—families with children.

     A fair housing organization filed the HUD complaint, alleging that its testing showed that households with children were charged more than same-size households without children. In one test, the manager allegedly told a tester posing as a mother with a son that she would have to pay $775 for a two-bedroom apartment that had been advertised as renting for $740; later that same day, he allegedly told a different tester posing as a married woman with no children that a two-bedroom apartment rented for $745 a month. In another test, he allegedly told a tester posing as a married woman with no children that a two-bedroom apartment was $740 a month, while telling a tester who inquired later that day whether children were welcome, “It’s just going to be higher at $775 a month.”

     HUD’s charge also accused the owner and manager of posting discriminatory statements in online advertisements, indicating a preference against families with children. Allegedly, one of the ads placed by the manager stated: “Winter Special Price for Two Adults” [HUD v. Breckenridge Plaza, Inc., March 2012].

Rule #4: Don’t Apply Unreasonable Occupancy Standards

Fair housing law doesn’t prevent communities from maintaining reasonable occupancy policies as long as they apply them consistently, but it’s illegal to set overly restrictive occupancy standards that have the effect of excluding families with children. If a community’s occupancy policy keeps the number of occupants unreasonably low, it’s likely to discourage families with children from living there unless they’re willing to pay for a larger unit.

     To ensure your community’s occupancy standards pass muster, the first step is to check applicable state and local laws, which may limit occupancy based on the number of people, square footage, and other factors. In general, federal fair housing law defers to reasonable state and local restrictions on occupancy, so you have to be familiar with those laws before you set or enforce your occupancy standards.

     Example: In August 2013, a Florida condominium association and its former management company agreed to pay $150,000 to settle a fair housing claim alleging that they enforced occupancy limits that discriminated against families with children. The complaint was filed on behalf of a family with six children living in a four-bedroom unit at the 249-townhome community. Allegedly, the community’s rules allowed only six occupants in four-bedroom units, but it was subject to a county ordinance with its own occupancy limits, which were based on the square footage of the unit and the bedrooms. Based on its size and number of bedrooms, the government alleged, the family’s unit could legally house 11 occupants.

     “Twenty-plus years of HUD guidance and cases have put housing providers on notice that occupancy standards which unfairly limit or exclude families with children violate the Fair Housing Act,” Bryan Greene, HUD’s Acting Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement [U.S. v. Townhomes of Kings Lake HOA, Inc., August 2013].

     Subject to state and local law, two persons per bedroom is a reasonable standard under federal fair housing law, according to HUD guidelines issued in 1991 known as the “Keating memo.” But that’s only a rule of thumb, which may not be reasonable in certain cases because of the size of the bedrooms and of the overall unit, the age of the children, the unit configuration, other physical limitations of the housing, state and local law, and other relevant factors. Among other things, HUD will look at evidence, such as discriminatory statements or rules, which may suggest that the occupancy policy was adopted as a way to restrict children from living there.

     You’re better off focusing on the number of people who may occupy units, not the number of children you’d prefer to live there. The guidelines state that a policy that limits the number of children in a unit is less likely to be reasonable than one that limits the number of people per unit.

     Example: In April 2013, the owners and managers of rental homes in Mississippi agreed to pay $27,000 to settle a lawsuit alleging discrimination against families with children. The lawsuit claimed that the defendants refused to rent a three-bedroom home to a single mother with four children because she had “too many children” under the defendants’ occupancy policy, which would allow five people to live in the house, but only three children. The lawsuit also alleged a pattern and practice of discrimination because the occupancy policy differentiated between the maximum number of adults and children who could reside in each home [U.S. v. Magee, April 2013].

     And remember, HUD’s two-person/per-bedroom rule isn’t written in stone. In a recent statement, HUD pointed to language in its 1991 guidance, which states that although an occupancy policy of two persons in a bedroom is generally reasonable under the FHA, such a policy might in some circumstances unfairly exclude families with children and violate federal fair housing law.

     Example: In August 2013, a national management company agreed to pay $15,000 to settle a HUD complaint alleging discrimination against a Connecticut family with children. The couple claimed that the company refused to renew their lease after concluding that the family of five was too large for the two-bedroom unit, where they had lived for nearly a decade. Allegedly, the company maintained an unwritten policy restricting occupancy to two persons per bedroom regardless of size, claiming that Connecticut state law required the restriction. But HUD maintained that neither state law nor city ordinances impose a blanket restriction. As part of the settlement, the company agreed to conduct a nationwide search to determine how many other families were affected by its occupancy policy since 2011; qualified affected families approved by HUD may be entitled to $3,500.

     “While HUD maintains that two persons per bedroom is often a reasonable standard, we’ve put housing providers on notice that they must always consider the size of the rooms and overall apartment when setting occupancy standards,” HUD’s Acting Assistant Secretary for Fair Housing and Equal Opportunity, Bryan Greene, said in a statement [Secretary, HUD v. Hamilton Point Property Management, LLC, August 2013].

     Example: In a similar case also from Connecticut, the owners and managers of a 156-unit rental property agreed to pay $40,000 to a woman with four children who claimed that she was prevented from renting a two-bedroom unit because of the size of her family. The lawsuit alleged that, as applied in this case, the community’s two-person-per-bedroom occupancy limit was more restrictive than state and local law, and unreasonably limited the ability of families with children to rent at the property [U.S. v. Landings Real Estate Group, December 2012].

Rule #5: Don’t Express Unlawful Preferences in Statements or Advertising

Fair housing law makes it unlawful to make any statements, orally and in writing, expressing a preference against families with children under 18. Advertisements may not contain limitations on the number or ages of children, or state a preference for adults, couples, or singles, according to HUD guidelines. The law doesn’t require proof of discriminatory intent to establish a violation.

     Increasingly, fair housing organizations have been monitoring Craigslist and other online media to check for discriminatory advertisements. All too often, they find blatantly discriminatory ads—such as “No kids”—but even ambiguously worded ads can lead to a fair housing complaint if the language suggests a preference for singles or against families with children.

     Example: In August 2013, a federal appeals court ruled that an Ohio community could face liability under the FHA for an online ad describing an available one-bedroom unit as a “Great Bachelor Pad!” Allegedly, the body of the ad stated, “Our one bedroom apartments are a great bachelor pad for any single man looking to hook up.” In overturning a lower court ruling in favor of the community, the court explained that the only issue was whether an ordinary reader would find the ad indicated a preference for—or against—a group protected under fair housing law. In this case, the court noted that an ordinary reader could find that the ad, while badly worded, showed no indication that women or families would be unwelcome, but merely expressed an opinion about who would find the apartment appealing. On the other hand, the court said that an ordinary reader could find the ad clearly suggested a preference for single men at the complex. The court concluded that it was up to a jury to decide whether the ad violated fair housing law and sent the case back for further proceedings [Miami Valley Fair Housing Center, Inc. v. The Connor Group, August 2013].

Rule #6: Don’t Engage in Unlawful Steering

Unless you’re exempt as a senior housing community, it’s unlawful to discourage families with children under 18 from living in your community—or in certain parts of your community.

     When showing units to prospects, tell them about all available units that meet their stated requirements. Limiting a prospect’s housing choices because she has children under 18 in the household is a fair housing violation, commonly known as “steering.” In general, steering means guiding, directing, or encouraging prospects to live in—or not live in—certain sections of your community based on any characteristic protected under federal, state, or local law. Even if you believe it’s better to keep children out of harm’s way, you may face liability for unlawful steering if you don’t tell families with children about available units on upper floors or near water features, such as a pond or pool.

     Example: In August 2013, the owner of a Kentucky community agreed to pay $22,000 to resolve allegations that he violated fair housing law by discriminating against African-American prospects and for making statements indicating a preference for families without children to rent second-floor apartments at the complex he operates. The allegations were based on evidence generated by the Justice Department’s fair housing testing program, in which individuals pose as renters to gather information about possible discriminatory practices [U.S. v. Wilson, August 2013].

Rule #7: Don’t Unfairly Target Children in Community Rules

Disputes over the community’s rules—or the way the rules are enforced—can lead to fair housing trouble based on familial status. Rules governing residents’ behavior in common areas, such as hallways, parking lots, and outside spaces serve a legitimate purpose—to safeguard property and ensure safety—but you may face a discrimination claim if your rules unreasonably target children or limit their behavior.

     As much as possible, avoid adopting rules that specifically target children’s behavior. Rules banning children from playing in common areas—or requiring adult supervision on all children under 18—could lead to accusations that you’re treating families with children less favorably than adult households living at the community.

     Example: In April 2013, a court addressed whether a California community’s rules amounted to discriminatory statements based on familial status. Among other things, the rules allegedly stated, “Please keep children under control at all times. It is not the responsibility of the Manager or other tenants to baby sit them.” The court agreed that the rule explicitly treated families different than adults-only households: Members of adults-only households were not required to be “under control” at all times—nor did the rule require tenants to keep adult guests “under control.” The court found that the rule targeted only families with children, but that further proceedings were needed to consider the owners’ alleged reasons for adopting the rule: to inform tenants that they were responsible for their child’s safety, and to avoid potential liability that could arise when tenants’ children, who were unsupervised, were injured or caused property damage [Blackington v. Quiogue Family Trust, April 2013].

     Even if you adopt rules that govern all residents—not just children—you could still face a discrimination claim if you enforce the rules only against children. Singling out children for breaking the rules against noisy behavior in common areas—but ignoring similar transgressions by adults—could lead to a fair housing claim based on familial status.

Rule #8: Don’t Discriminate Against Residents for Adding a Child to the Household

Think twice before taking steps against residents for adding one or more children under 18 to the household. Fair housing rules banning discrimination based on familial status apply not only to families with children under 18, but also to pregnant women and others who have or are in the process of adopting or obtaining custody of a child.

     Consequently, it’s unlawful to discriminate against a resident who has a baby, adopts a child, or takes custody of grandchildren. As long as the unit is large enough for the family under applicable occupancy limits, you could face fair housing liability if you evict them, refuse to renew their lease, or insist that they move to a larger unit.

     Example: In July 2013, HUD charged the manager of a New Hampshire community with discrimination against a couple with two children living in a two-bedroom unit. According to the charge, the manager responded to news that the couple was expecting their third child by commencing eviction proceedings on the grounds that the unit wasn’t big enough for five people. Ultimately, a court ordered them to pay back rent, but allowed them to stay for an additional period. About a month after moving out, the woman gave birth. The HUD charge accused the manager of violating fair housing law by evicting the family because the woman was pregnant [Secretary, HUD v. Keating, July 2013].

• Fair Housing Act: 42 USC §3601 et seq.