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Continued from page CS-10
ONE MEMO DOES NOT FIT ALL
The open-endedness of the Keating Memo has proved to be a blessing and a curse. On the positive side, property managers have a clear path to deny residency to families or groups of adults with too many people per bedroom.
Based on the law, it seems like you could just say no to a family of five (two parents with three kids) trying to rent a two-bedroom apartment.
Sometimes this is true, but in reality, the complications are endless. What if...
• A couple moves in and later has a baby?
• The couple signs a lease and has an infant?
• The couple has a toddler? Is that different than a baby? When happens to the occupancy standard when they grow older?
• The unit is big enough to accommodate more than two people per bedroom?
These are not easy questions to answer. We’ll need to turn to the courts for further guidance.
CASE LAW ON THE ISSUE
NMHC notes that in the case of Rhode Island Comm’n for Human Rights v. Graul, “The FHA trumps the Keating Memo when the Memo’s guidance would be unreasonable ... because the third occupant was a baby infant.”
This and other similar cases have established a common precedent: the Keating Memo can be used as a policy guide, but it is not enforceable as a liability rule. Courts will take in “a totality of circumstances” to determine whether the property manager’s occupancy rule counts as familial status discrimination.
TAKE THINGS ONE CASE AT A TIME
Every decision you make will have to fall within the limits of fair housing laws. Therefore, in accordance with case law on occupancy standards, you need to be able to review your policies on a case-by-case basis.
As with everything that relates to fair housing laws, document exceptions to your rules. Include full details and reasons for your actions.
Please turn to page CS-14
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APARTMENT MANAGEMENT MAGAZINE - SEPTEMBER 2021 CS-13