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2. LAWS THAT PROTECT FAMILIES WITH CHILDREN
Families with children sometimes experience discrimination from property managers who do not want children in their units. Such intentional discrimination is called disparate treatment. For instance, it’s often illegal to target your advertising toward single people or couples without children.
We’re actually going to focus on something called disparate impact. Unlike disparate treatment, these are policies that seem neutral but nonetheless target an age group or protected class of renters.
If you want to dig into this topic, check out what NAA has to say: Disparate Impact and Fair Housing
THE WORDING OF YOUR POLICIES MATTER
Sometimes, you simply need to reword your policy to make it FHA compliant. Let’s say you have a rule intended to prevent trip hazards on balconies. You’ve noticed that children tend to leave their toys scattered around, so you implement a rule: “No toys on balconies.” The problem is that this rule targets children and could be seen as having a disparate impact on families.
You could simply reword the rule and include a non- discriminatory justification: “For safety purposes, keep balconies clear of obstructions.” This is a better approach because the rule applies to everyone. (Obstructions could be toys or anything else.)
WHO’S GOING FOR A SWIM?
As strange as it may sound, even when you have a child’s best interests at heart, a rule can still be discriminatory against them. For instance, no one thinks a three-year-old should be wandering around a swimming area unsupervised. But there is great difficulty in crafting a non-discriminatory rule.
NMHC lists swimming pool rules that courts have said violate fair housing laws. These include:
• Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian.
• Children must leave the pool by 6:30 pm and must be supervised by a resident relative at all times when using the pool.
Even changing “parent or legal guardian” to “adult over 18” may not be enough. After all, a 17-year-old trained lifeguard could reasonably supervise a child. In the above examples, courts did not feel there was
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enough of a safety threat to warrant the stated rule.
That said, you’ve probably seen rules like these (and you may have them yourself). Everything depends on your state and local laws. Your attorney can provide guidance on your specific situation.
GYM & LAUNDRY
If there’s any area of safety where age-related discrimination has held up, it is with regards to gym equipment. According to NMHC, the need for safety precautions in gyms is generally seen as obvious and compelling, but even so, property managers should abide by state and local laws.
On the other hand, restrictive laundry room rules have not always held up. It’s simply harder to make the case for imminent danger in a laundry room than it is in a gym with heavy equipment.
SO WHAT CAN YOU DO?
The pool, gym and laundry examples are meant to demonstrate how difficult it can be to establish non- discriminatory rules, even when a child’s safety may be at stake. In some cases, it is appropriate to call out a specific age group for a rule, but the reason for the restriction must be compelling. As a general rule: Always keep your language broad and inclusive, and state your specific justifications for each policy.
Be aware how you phrase each rule, not just the rule itself. Before making any rule that cold target a specific group — such as families and children — consult state and local laws, as well as your attorney. (We can’t emphasize that enough.)
3. LAWS AROUND OCCUPANCY STANDARDS
In 1991, HUD issued an influential statement known as the Keating Memo. This memo — and later the official 1998 law — sought to resolve an occupancy standard dilemma that property managers have faced since the Fair Housing Act was enacted in 1968.
Even if you haven’t heard of the Keating Memo, you’ve probably heard of the “two people per bedroom” policy. The memo wanted to provide simple guidance to a complex problem: How many people can live in an apartment? The guidance states that two people may occupy an apartment for every bedroom. So, a one-bedroom apartment could reasonably house no more than two residents.
If only it were that simple.
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