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Avoiding Familial Status Discrimination

Many landlords aren’t familiar with their responsibilities when it comes to renting to families with children or don’t even know that families with children enjoy a protected status under federal housing discrimination laws.
The Fair Housing Act protects tenants against discrimination based on seven protected classes, including “familial status.” This means that if you refuse to rent to tenants simply because they have kids or you treat tenants differently because they have children, you may be violating federal law.
Here’s a rundown on exactly whom the FHA’s familial status discrimination ban protects and how it applies to your property.

What Types of Families With Children Does the FHA Protect?
The FHA’s familial status protection is broad. Here’s what you need to know to determine if the ban on familial status discrimination applies to your tenants:
1. The FHA protects families with children even if the children aren’t living with their biological parents. Children may live with a biological parent, stepparent, foster parent, grandparent, or any other adult who has legal custody of them. In addition, if a child is living with someone whom a parent or legal custodian has designated in writing, then such a household is also protected against familial status discrimination.
2. The marital status of adult tenants is irrelevant. As far as familial status protection is concerned under the FHA, it makes no difference if the adult members of the family are married, divorced, single, widowed, or separated. So, for example, a single father with one child is protected just as much as a married couple with three children.
3. Children must be under 18 years old. The FHA doesn’t simply protect people who happen to be living with their children. For familial status protection to apply, the law requires that there be at least one person in a household under 18 years old. So, for example, a couple who’s looking to rent an apartment with their 18-year-old son isn’t protected (even if the son is still a high school student). Similarly, a couple who starts renting an apartment with a child when he’s 17 years old will lose familial status protection on the child’s 18th birthday.
4. Children don’t have to be part of a household yet. Tenants are also protected against familial status discrimination if they’re expecting a child to become part of their household. So, landlords can’t discriminate against tenants because they’re pregnant or in the process of adopting a child.
It is fair to have reasonable limits on the number of people that can live in a rental home. However, when it comes to families with children you have to be reasonable, and the Department of Housing and Urban Development (HUD) has ruled that usually means allowing two people per bedroom, with one additional person in the rest of the unit. So in a two bedroom apartment you should allow a family of up to five people to live there, and in a one bedroom you should allow a family of three. (Again, this applies to families—unrelated individuals can have a different occupancy standard). Recently a large number of apartments nationwide have been taken to court for not using this standard.
This standard is especially important when it comes to a small apartment and tenants who are pregnant or who have a newborn. Refusing to rent to such tenants (or making them move) is the most common violation of this rule, and will always get you in trouble. As far as a judge is concerned the amount of space and the additional wear and tear on a unit caused by a newborn is so negligible that if you were to force them to move to comply with a “two people per bedroom” occupancy standard it would be almost impossible to justify that in court.
Two other common problems with familial status discrimination involve steering and rules. Steering occurs when managers discourage a household with kids from renting upper floor units or in areas they want to have adults (like near the swimming pool). Don’t do this, you’d be asking for a $10,000 fine. When setting rules, you should make sure they don’t have disproportionately negative effects on families. For instance, a rule that the swimming pool has “adult swim hours” when families can’t go is discriminatory. Requiring adult supervision on a playground may also be discriminatory.

NOTE: For health and safety reasons it may be ok to set some rules for things like pools, but consult an attorney before setting any such rules.

If you have any questions about these issues please email admin@TierOneRE.com or call us at 801-486-6200.

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