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Complaints can arise from the way you advertise, show units, apply occupancy standards, and enforce community rules.
In this month’s lesson, the Coach looks at fair housing problems that can arise when dealing with families with children. Fair housing law bans discrimination against families with children, but there’s more to it than that. You could get into fair housing trouble from the way that you advertise your property, show units, apply occupancy standards, and enforce community rules.
Under a limited exception, senior housing communities may lawfully exclude families with children, but that exception applies only if your community satisfies specific technical requirements. Unless you meet these requirements, your community could be liable for restricting or otherwise excluding families with children from living there.
In this month’s lesson, we’ll review the law governing familial status and offer 10 rules—the essential Dos & Don’ts—for complying with fair housing law when dealing with families with children. 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) bans discrimination based on familial status. In general, that means you can’t discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household. Specifically, the FHA’s ban on discrimination based on familial status applies when one or more children under the age of 18 are living with:
A parent;
An individual with legal custody; or
An individual who has the written permission of the parent or custodian.
It also applies to pregnant woman and anyone in the process of securing legal custody of one or more children under 18.
In a nutshell, the familial status provisions apply whenever there’s one or more children under 18 living in the household. The children may be living with one or both birth parents—whether they’re married, divorced, single, gay, or straight. The adult could also be an adoptive parent, foster parent, or legal guardian. Individuals with legal custody include family members or others approved by the courts. More broadly, the law applies to people with written permission of the parent or legal guardian.
Senior housing exemption. Under a limited exception, senior housing communities may lawfully exclude children, but only when they satisfy strict legal requirements to qualify as “housing for older persons.” The exemption applies to housing communities or facilities that are governed by a common set of rules, regulations, or restrictions. A portion of a single building is not considered a housing facility or community, according to HUD. And remember: The senior-housing exemption applies only to the FHA’s familial status provisions; the community still must abide by the law’s protections based on race, color, national origin, religion, sex, and disability.
FOLLOW 10 RULES FOR DEALING WITH FAMILIES WITH CHILDREN
Rule #1
DO Make Housing Available to Families with Children
DON’T Deny Housing Because There’s a Child in the Household
Though it’s been unlawful for more than 30 years, communities continue to run afoul of fair housing provisions by denying housing to families with children.
It’s important to remember that familial status is on the same footing as race and any of the other protected classes under fair housing law. Just as it’s unlawful to turn people away because of their race, you can’t turn prospects away because they have one or more children living with them. It doesn’t matter whether you—or your current residents—would prefer to be living among adults; it’s unlawful to deny housing to people—or to treat them differently—because there’s a child under the age of 18 in the household. In fact, simply expressing a preference against families with children can lead to a fair housing complaint.
Example: In February 2020, the owners of a California community and its leasing agency agreed to pay $10,000 to resolve allegations that its leasing agent denied a father of two children the opportunity to rent a condominium. In his HUD complaint, the father alleged that he was denied the opportunity to rent the condo because his two young daughters would be living with him part time. According to the father, the leasing agent refused to consider his application for the unit, saying, “I don’t want to waste your time or mine. Sorry.” The housing providers denied that they discriminated against the family.
“Families today face enough challenges without being denied a place to call home because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue working to ensure that housing providers meet their obligation under the Fair Housing Act to treat home seekers with children equally.”
Example: In March 2019, a California rental property owner and his management company agreed to pay $15,000 to resolve a HUD complaint alleging that they refused to rent a unit to a couple because they have three children. The case came to HUD’s attention when Project Sentinel, a HUD Fair Housing Initiatives Program agency, filed a complaint alleging that the family was denied the opportunity to rent a two-bedroom unit because they have children. The housing providers denied that they discriminated against the couple.
“Families shouldn’t have their access to housing denied simply because they have children,” Farías said in a statement. “This type of discrimination has been against the law for more than 30 years, and HUD will continue working to make the public and housing providers aware of their rights and responsibilities under the Fair Housing Act.”
Rule #2
DO Follow the Rules to Qualify for the Senior Housing Exemption
DON’T Adopt or Enforce Adults-Only Policy
Although fair housing law generally prohibits discrimination based on familial status, there’s a limited exception that applies to senior housing communities that meet strict legal requirements to qualify as “housing for older persons.” Senior communities that comply with these technical requirements are exempt from the general rules that protect families with children. There’s no middle ground—you either meet those requirements or you don’t. And if you don’t, you’re likely to trigger a fair housing complaint if you adopt or enforce an “adults-only” policy that prevents families with children from living there.
Example: In January 2019, the California Department of Fair Employment and Housing (DFEH) announced a $10,000 settlement to resolve a fair housing complaint against the owner of a six-unit rental community and the real estate brokerage firm that managed it. Fair housing advocates filed the complaint, alleging that the property was advertised online as an “adult complex” and included a restriction of “maximum 2 adults.” During a follow-up call, the property manager allegedly told a tester that children were not allowed. DFEH found that the complex wasn’t a senior citizen housing development and that there was cause to believe a violation of state fair housing law had occurred. The case was settled prior to formal mediation.
“In California, senior housing developments can, with some exceptions, exclude residents under 55 years of age if they have at least 35 units and meet other requirements,” DFEH Director Kevin Kish said in a statement. “All other rental properties violate the law if they categorically exclude families with minor children.”
DO Apply Same Terms and Conditions Regardless of Familial Status
DON’T Treat Prospects Differently Because They Have Children
Treat 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, for families with children.
Example: In May 2019, a court refused to dismiss a fair housing case against a Virginia couple who engaged the services of a real estate agency to assist them in leasing their five-bedroom, five-and-a-half bath, 8,500 sq. ft. home. Shortly after it was listed for rent at $3,750 per month, a prospect contacted the realty agent about leasing the home for his multigenerational family. When the agent asked how many people would be living there, the prospect said his family consisted of him and his wife, their five minor children, and his two parents.
A few days later, the agent allegedly told the prospect that the owners “were not interested in renting to a large family.” Later, the owner allegedly told the agent that he was willing to rent to the prospects “if they paid more.” According to the prospect, the agent told him that he could rent the home if he was willing to pay “a few hundred dollars” more since there would be two families living there. The prospect said he told the agent that there would not be two families living there. The home was later rented to a family consisting of a husband, wife, and two children for the advertised rent.
The prospect sued the owners and the agency for discrimination based on familial status under state law. The prospect claimed that the agent’s “tone and communications” made him believe that the landlords feared additional wear and tear on the home because his family included five children and that the couple wasn’t willing to rent them the home, despite the prospect’s willingness to pay the advertised rent, because they were “a large family.” According to the prospect, the owner’s use of terms “additional family” and “two families” were code words to mask their preference to refuse to rent to his family because it included five children under age 18.
The court refused to dismiss the case. The owner alleged that his request for additional rent was related to the presence of the additional adults, not the minor children, in the household, but court ruled that further proceedings were needed to resolve the case [Commonwealth ex rel. Real Estate Board v. Tutt Taylor & Rankin Real Estate LLC., Virginia, May 2019].
Rule #4
DO Be Prepared to Justify Reasonableness of Occupancy Standards
Fair housing law doesn’t prevent you from maintaining reasonable occupancy policies as long as you 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.
Subject to state and local law, two persons per bedroom is a reasonable occupancy policy under federal fair housing law, according to HUD guidelines issued in 1991 known as the “Keating memo.” Nevertheless, HUD says 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.
Example: In February 2020, HUD approved a settlement between fair housing advocates and a group of California property owners and managers resolving allegations of discrimination based on familial status. Fair housing advocates filed the HUD complaint, alleging that fair housing testing showed that the owners and two property managers refused to rent to families with children or offered them different lease terms and conditions. The advocates also claimed that the owners and managers implemented an unreasonably restrictive two-person-per-bedroom occupancy policy at two rental properties. The housing providers denied the allegations.
“Families looking for safe, decent housing shouldn’t be penalized because they have children,” Anna María Farías, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s agreement reaffirms HUD’s commitment to ensuring that housing providers meet their obligation to treat all applicants the same.”
To avoid fair housing trouble, 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. HUD guidelines state that an occupancy 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 September 2019, the owners and managers of a large rental home in Idaho agreed to pay $15,000 to settle allegations that they refused to rent the home to a married couple because they had more than four children. Specifically, the HUD charge alleged that the homeowners discriminated against a family attempting to lease their 2,600 square foot, four-bedroom rental home because they had seven minor children. When the couple met with the property manager about renting the home, he allegedly said that the owners had set a limit of four children for the home. The charge also alleged a policy restricting the number of children was written in the rental contract.
“Persons attempting to provide a home for their family should not have their housing options limited because they have children,” Farías said in a statement. “Today’s action will hopefully serve as a reminder to all housing providers of the importance of meeting their obligations to comply with the requirements of the Fair Housing Act.”
Rule #5
DO Be Careful About Applying Occupancy Standards When a Child Joins a Household
DON’T Penalize Residents for Having a Baby
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 state and local 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 September 2019, the Justice Department sued the manager and owners of a Missouri apartment complex for discrimination on the basis of familial status. The case began with a HUD complaint filed by a couple, who alleged that the owners and manager terminated their tenancy because of the birth of their second child. At the time, the couple said they and one minor child had been renting their one-bedroom unit at the community for more than a year. The complaint also alleged that the community’s application form, lease agreement, and correspondence with the couple stated an explicit “No children” policy.
Example: In August 2018, HUD charged the owners of a South Dakota community and their property management company with housing discrimination for refusing to let a couple and their newborn baby stay in their one-bedroom apartment because of the community’s occupancy policies. According to the charge, shortly after the new baby arrived, the mother allegedly asked agents of the property management company how long two adults could live in a one-bedroom unit with an infant and was told that they would have to move to a two-bedroom unit. The community claimed that the two-person-per-bedroom occupancy policy was required by the city’s occupancy code. But HUD alleged that the city code was more flexible than that by allowing consideration of additional areas beyond bedrooms that may be considered for sleeping and occupancy purposes.
“Occupancy policies that exclude families with children or make it harder for them to obtain housing are unlawful and have no place in today’s often tight housing markets,” said Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity.
Rule #6
DO Tell Prospects About All Units that Fit Their Needs
DON’T Engage in Unlawful Steering Based on Familial Status
Limiting a prospect’s housing choices because they have 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—or not live—at the community or in certain areas within a community based on familial status or other characteristics protected under fair housing law. Among other things, you may not restrict where families may live by making certain units, floors, or buildings off-limits to families with children.
When discussing vacancies with prospects, tell them about all available units that meet their stated requirements. Even if you believe it might be better for the children, you could trigger a discrimination complaint 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 December 2017, the owners and operators of a New Hampshire community agreed to pay $25,000 to settle fair housing case for discrimination based on familial status. In its complaint, the Justice Department alleged that a mother of an infant child visited the community to inquire about two-bedroom apartments but was told that the community had a policy of placing families with children under the age of 10 in first-floor units only, and that no first-floor units were available.
Rule #7
DO Adopt Child-Neutral Community Rules
DON’T Allow Rules to Unfairly Target Children
Rules governing residents’ behavior in common areas, such as hallways, parking lots, and outside spaces serve a legitimate purpose: to protect property and ensure safety. But you could trigger 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 outside, unduly restricting their access to amenities, or requiring adult supervision of 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 2018, the owner of a 44-unit California community agreed to a $25,000 settlement to resolve claims that the owner’s “house rules” discriminated against families with children. In a complaint filed with state officials, a family alleged that the owner had a number of rules discriminating against children who lived in the complex. According to the family, children were forbidden from using the swimming pool after 6 p.m., even though adults were free to use the pool until 9 p.m. The family also alleged that the rules prohibited children from riding bicycles, using skateboards, or playing with Hot Wheels, wagons, or balls in common areas—rules that were not applied to adults. Allegedly, the family eventually moved out of their unit due to the restrictions on where their child could play.
“DFEH is committed to ensuring that families with children are not discriminated against in housing,” Kevin Kish, Director of the Department of Fair Employment and Housing, said in a statement. “Discriminatory restrictions on children’s use of common areas are not only against the law, but make it difficult for families with children to find and stay in suitable housing.”
Coach’s Tip: Even if your community’s rules apply to all residents—not just children—you could still face a discrimination claim if you enforce the rule only against children. For example, 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
DO Focus Advertising on Property, Not People
DON’T Suggest that Children Aren’t Welcome at Your Community
Under the FHA, it’s unlawful to “make, print, or publish…any notice, statement, or advertisement,” that indicates any preference, limitation, or discrimination based on familial status and other protected characteristics. This rule applies to not only discriminatory advertising, but also all kinds of statements, including:
What you say to prospects, applicants, or residents in person or over the phone;
What you write in notes, text messages, emails, and perhaps even social media, as well as community rules and policies;
What you put in your advertising and marketing materials—including words and graphics—in print, online, and other media.
Unlike other prohibited practices, liability for making discriminatory statements doesn’t require proof of discriminatory intent. The test is whether an “ordinary reader or listener” would interpret the statement as indicating a preference for—or against—families with children. According to HUD guidelines, advertisements may not contain limitations on the number or ages of children, or state a preference for adults, couples, or singles.
Example: In April 2019, the owner of a Maine rental property and its rental agent agreed to pay $18,000 to settle allegations that they denied housing to families with children. A fair housing advocacy group filed the HUD complaint, alleging that the community refused to negotiate with fair housing testers posing as families with children, posted discriminatory advertisements indicating that children weren’t allowed, and made discriminatory statements to fair housing testers.
“It’s hard enough for families to find places to live that meet their needs without being denied suitable housing because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to working to ensure that housing providers comply with their Fair Housing Act obligation to treat all applicants the same, including families with children.”
Coach’s Tip: To avoid accusations of discriminatory advertising, focus on descriptions of the property available for rent, not the kind of people who may want to live there.
Rule #9
DO Abide by Legal Obligations Involving Lead-Based Paint
DON’T Deny Housing to Families with Children Due to the Presence of Lead Paint
Although lead-based paint was banned for residential use in 1978, HUD estimates that about 24 million older homes still have significant lead-based paint hazards. Lead-contaminated dust is the primary cause of lead exposure and can lead to a variety of health problems in young children; at higher levels, lead can damage a child’s kidneys and central nervous system and can even be deadly, according to HUD.
While an affected community may be tempted to avoid renting to those most at risk—young children—that practice is banned under fair housing law. Regardless of the presence of lead-based paint, you may neither exclude nor discourage families with young children from living there.
Example: In January 2019, a federal appeals court upheld a $43,500 jury verdict against a Massachusetts community. In its complaint, the Justice Department alleged that the owner of a four-unit rental property violated federal fair housing law when he refused to rent a unit to a family because they had children under 6 years old and the units had no lead certificate. According to the Justice Department, the jury found that the owner made an apartment unavailable to the family based in substantial part on their familial status and that the owner retaliated against them after they filed their HUD complaint.
Rule #10
DO Review Student Housing Policies Affecting Students with Children
DON’T Risk Fair Housing Trouble in Student Housing Based on Familial Status
Fair housing experts warn that student housing providers are risking fair housing trouble when it comes to housing decisions affecting students with minor children. If you rent to anyone, including students, it’s a violation of fair housing law to refuse to rent to a student with a young child on the same terms and conditions as you would to other applicants.
Example: In March 2020, the National Fair Housing Alliance (NFHA) announced a settlement agreement with the largest third-party property management company in the nation for campus living. NFHA reports that the agreement will open up access to 140,000 beds across 40 states and 77 cities to families with children.
The settlement resolves NFHA’s lawsuit alleging that the company violated fair housing law by discriminating against families with children. The complaint alleged that the company, although marketing itself as student housing, knowingly rented to non-students while enforcing policies that discouraged families with children, even when the parents were students.
NFHA also alleged that the company, which owns or manages hundreds of apartment buildings throughout the country, had a policy that no more than one person could reside in each bedroom. According to the complaint, the policy wouldn’t permit a mother and her 2-year-old child to live in a large one-bedroom apartment under one lease, so the student and her daughter had to sign two leases and pay double the rent.
Example: In September 2019, the Justice Department sued the owners and managers of residential rental housing in Hawaii, alleging that they violated fair housing law by refusing to rent to families with children. The lawsuit claimed that the three properties were operated as student housing for post-secondary students.
Specifically, the complaint alleged that the communities discriminated against families with children by: (1) refusing to rent or to negotiate for the rental of the three properties on the basis of familial status; (2) steering prospective renters with children who inquired about housing away from the properties to a separate property management company; and (3) making discouraging and other discriminatory statements to potential renters with children who inquired about housing, including that the housing wasn’t “suitable” or the right “fit” for families with children. The complaint contains allegations of unlawful conduct; the allegations must be proven in federal court.
“Owners and managers of rental housing must ensure their housing is open to families with children,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement. “The Fair Housing Act requires it, and the Justice Department will continue both to enforce the Act vigorously and to seek relief for families victimized by unlawful discrimination.”
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