What NOT to Do When Dealing with Families with Children

The Fair Housing Act (FHA) prohibits housing discrimination based on race, color, national origin, religion, sex, disability, or familial status. In the most basic terms, the familial status provisions ban sites 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 house rules, to name a few aspects of day-to-day management.

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.

The protections for families with children extend to elderly HUD-assisted sites such as Section 202/8 sites for the elderly. According to the HUD Handbook, owners may not exclude otherwise eligible elderly families with children from elderly sites or elderly/disabled sites [HUD Handbook 4350.3, par. 3-23(D)(3)].

It’s important to note that for HUD Section 202/8 sites for the elderly, an adult child is not allowed to move in after initial occupancy unless the adult child is necessary for the care and well-being of the elderly tenant [HUD Handbook 4350.3, par. 7-4(D)].

The following are seven rules for what not to do when dealing with families with children—that is, potential trouble spots and how to handle them.

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

Though it has been unlawful for 25 years, sites continue to run afoul of fair housing provisions by refusing to rent to applicants because they have one or more children living with them.

Some owners may 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.

In February 2016, HUD announced a settlement involving owners and their on-site property manager. They allegedly refused to rent a two-bedroom apartment to a single mother and her two young children.

The case came to HUD’s attention when a single mother of 4-year-old twin boys filed a complaint claiming that the site denied her the opportunity to rent a two-bedroom unit because she has children. She alleged that, after learning that she has two sons, the property manager told her that there would be some clean-up involved and that he would get back to her—but he never did. Two weeks later, the woman’s mother allegedly called the manager on her daughter’s behalf. When the mother reminded him that her daughter has two children, the manager allegedly said that he would need to consult with his wife, who wouldn’t be back in town for two weeks.

Suspecting discrimination, the woman then asked her cousin to call about the unit. Allegedly, the property manager asked who would be living there and that when the cousin said it was for her and her husband, he offered to show her the unit the next day.

Among other things, the settlement requires the site to pay the mother $19,500 and to modify its website and advertising policy to clearly state that families with children are welcome [Great New Britain, LLC: Case No. 01-16-4044-8; January 2016].

Rule #2: 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 site.

Rule #3: Don’t Apply Unreasonable Occupancy Standards

Fair housing law doesn’t prevent sites 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 site’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 site’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 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.

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.

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].

Rule #4: 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.

Rule #5: Don’t Engage in Unlawful Steering

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

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 site 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.

Rule #6: Don’t Unfairly Target Children in House Rules

Disputes over a site’s house 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 site.

In one case, HUD charged the current and former owners and managers of a 61-unit site in Texas with violating fair housing law by imposing overly restrictive rules on children under 16 who lived there. Specifically, HUD’s charge alleged that the site’s rules discriminated against families by prohibiting children under the age of 16 from being in their home without an adult, using the laundry facilities without an adult present, using the pool without an adult present, or using their scooters or bikes on the street and parking lots without an adult. HUD’s charge also alleged that residents were told that parking lots were not to be used as playgrounds and that if children were left playing “in the street” with bikes or scooters, they would be given a 24-hour notice to vacate [Secretary, HUD v. Blackacre LLC, September 2015].

“Instituting rules that limit the activities of daily life for families with children violates the Fair Housing Act,” Gustavo Velasquez, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

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 #7: 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.

In July 2013, HUD charged the manager of a New Hampshire site 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].