Avoiding Fair Housing Land Mines

Published on: December 22, 2001

Any landlord who has surveyed the damage created by a hyperactive three-year-old (with unsupervised access to crayons and paints) or who has fielded complaints about the teenager who plays hard rock at 3 a.m., has no doubt considered attaching a “no children allowed” rider to future “apartment for rent” signs. The sentiment is understandable, but the discrimination is illegal. Both federal and state fair housing laws (Title VII of the Civil Rights Act of 1968, as amended, and Chapter 151B, Section 1 of the Massachusetts General Laws, respectively) prohibit property owners and real estate agents from discriminating against families with children in the sale or rental of housing.

Although similar in most respects, the federal and state statutes differ in the nature and scope of the exemptions they allow. Where the laws diverge, the stricter requirements apply. This overview will highlight some of the major areas of concern.

Broad Protections

The laws apply broadly to housing of all kinds – condominiums, cooperatives, and homeowner associations, as well as detached single-family dwellings and apartments, with narrow exemptions for small property owners, who are not in the business of owning and managing real estate. But even the owners of two- and three-family dwellings, who are allowed to exclude children in some cases, can’t run ads stating that restriction.

The general ban on discrimination against children includes discrimination against pregnant women. Landlords cannot refuse to rent a unit to a pregnant woman, nor can they evict a woman who becomes pregnant after occupying a unit, as some landlords have tried to do. The Massachusetts lead paint law also specifically prohibits landlords from refusing to rent units containing lead paint to families with small children. It is illegal for a child under the age of six to occupy a dwelling containing lead paint, but the remedy is to de-lead (or partially de-lead) the unit, not to prohibit children from occupying it.

Retirement Communities

 Both the state and federal fair housing laws permit the exclusion of children from developments intended for older occupants, but their eligibility requirements differ. Both statutes exempt federally or state-aided elderly housing developments. The state law also exempts elderly retirement communities occupied by individuals 55 and older, if the development spans 5 acres or more, while the federal law provides two key exemptions for:Residential communities intended for and occupied by individuals 62 and older; andHousing intended for and occupied primarily by residents 55 and older.  

To qualify for the 55 and older federal exemption, developments must meet requirements established in the Housing for Older Persons Act of 1995 (HOPA). Specifically, at least 80 percent of the units must be occupied by at least one resident who is 55 or older, and the property owner must be able to demonstrate, through written policies, lease provisions, advertising, etc., that the community is designed exclusively for older residents. That requirement applies to the entire development; an apartment or a condominium community could not simply set aside one section for elders and exclude children from the entire complex.

Rules and Regulations

The rules barring discrimination against children (and others) cover the way housing is marketed and presented to prospective buyers and tenants as well as the regulations established for owners and tenants. The Department of Housing and Urban Development (HUD), which enforces the federal fair housing statute, periodically sends “spotters” to test for discriminatory practice, and a large percentage of those tests produce fair housing complaints. That’s something property owners and managers will want to keep in mind when reviewing the policies and procedures they establish.

Compliance issues are rarely simple, but the governing principle is clear: You can’t discriminate against children, nor can you establish policies that discriminate indirectly. Occupancy restrictions are a good example. Both the state and federal laws bar arbitrary limits on the number of people who can occupy a dwelling unit. What’s reasonable? You can generally assume that policies allowing no more than two occupants per bedroom will pass muster under federal law, thanks to a lengthy, although not entirely unambiguous HUD policy statement on the issue. That 1991guidance clarifies HUD’s general view, but it does not provide a secure safe harbor; the agency will consider the size of the bedrooms, among other factors, on a case-by-case basis, in determining whether specific occupancy limits are discriminatory. Under Massachusetts law, the state Sanitary Code sets the occupancy standards, based not on the number of rooms but their size. The code requires at least 150 square feet of floor space for the first occupant and at least 100 square feet for each additional occupant. Sleeping areas must provide at least 70 sq. ft. of floor space for the first occupant and no less than 50 sq. ft. for each additional occupant. If the two bedrooms in your unit have only 75 sq. ft. each, you could probably refuse to accept a family of six, but you’d be hard-pressed to bar that family from a unit with three bedrooms, if each bedroom has 150 sq. ft.

Reasonable Regulations

You can establish rules designed to ensure safety, but you must apply those rules uniformly and enforce them even-handedly. For example, you could reasonably prohibit roller-blading on the roof and you could probably bar bike riding in the parking lot as well. But you could not prohibit children from riding their bikes while allowing adults to ride theirs.

 Policies governing the use of recreational facilities can be particularly problematic. HUD frowns darkly on rules barring children from recreational areas or restricting their access to those facilities. A rule requiring adults to accompany young children in the pool area is reasonable, but adult-only swim times and policies barring children from the clubhouse or other common areas are likely to draw fair housing complaints.

Marketing Do’s and Don’ts

There are many myths about what the fair housing laws will and will not permit in advertising and marketing materials. Some of these concerns are exaggerated, but caution and sensitivity are advisable. Simply stated, don’t put anything in writing or make any statements that assert or imply that you exclude children, or would like to. A few specific suggestions:

If your ads or marketing brochures include photos of smiling residents, make sure some of those photos include children. Pictures portraying adults only suggest that children aren’t welcome, just as photos without minorities imply that whites only should apply.

In your ads and in your discussions with prospective occupants, concentrate on objective information about the development – the size of the units, or the amenities it offers – but don’t say anything about the “type” of people you prefer or think would be happiest living there. Avoid “loaded” words. You can say the units have four bedrooms, but don’t say they are “ideal for families.” You can say the nearest school is 5 miles away, but don’t say the community is designed for “mature” residents. Framingham: Soak up the sun from your balcony up in the trees, then step into your plush carpeted 1 BR hideaway with rustic brick walls. Seconds from Mass Pike, easy commute to Boston.Boston, Back Bay, 1br, lrg Windows, HDWD Flrs, Laundry. AvailBOSTON South End parlor 1BR, hardwood, deck, laundry, detail, D/D 

Don’t prejudge which units are appropriate for prospective residents; let tenants make those judgments for themselves. By all means, show the ground floor unit near the playground to the family with three children under the age of 6, but also show them the vacant unit on the other side of the complex, even if you know Mrs. Jones hates children and will make life miserable for you and for these tenants if they rent the unit above hers. Establish written policies and enforce them uniformly. Makes sure you can document nondiscriminatory reasons for the decisions you make. You want to be able to show that you rejected this family not because they had six children, but because they burned down the last apartment they occupied, and were evicted for nonpayment of rent from the three units they rented before that one.