Metro Apartment Manager, April 2005

Q: We have lots of children in our complex — lots of parents, too. Because the latter too often don’t supervise the former, we put in our rules several years ago one saying, “Parents must supervise their children.” I think this is legal because parents are responsible for their children. But now I’m getting one tenant—a law student, of course — who says that’s illegal. Is it?

A: Issues around people with disabilities might be the most frequent, but the ones around families with children are in my mind more complex. Before 1988, when Congress passed the Fair Housing Amendments Act, life was simple. Discrimination consisted of protections based on race, color, national origin, sex, and religion. It wasn’t too difficult to develop a working understanding of what that meant without going back to school. But when handicap/disability and familial status got added, life — for landlords, anyway — suddenly became infinitely more complex.

“Familial status” is a bureaucratic term that means “one or more individuals (who have not attained the age of 18 years) being domiciled with (1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.” In other words, a family with children — either present or on the way.

But what does discrimination mean? It’s actually quite well spelled out. The Fair Housing Act says it is unlawful:

“(a) To refuse to sell or rent… or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

“(b) To discriminate… in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.

“(c) To make, print, or publish… any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin…

“(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.”

I quote all that because most of us rarely read the actual words of the law, and we should from time to time. Some of it is straightforward. For instance, when a family with children looks at your place and says, “We like it,” if you say, Sorry, nothing available at this time, and that isn’t so, you’ve clearly violated the law. Similarly, if you decide to charge more rent for kids — and let’s be honest, a family with children will cause more wear and tear than one without — you are discriminating in “the terms” because it’s a family with children. That’s against the law.

One problem, however, is that — while the words are clear — many of the implications aren’t. For instance, landlords who don’t want to rent to families with children might — actually, they did — start allowing only two people in a home, even one with three bedrooms. So HUD — the federal agency that enforces fair housing law — had to come up with occupancy standards and we now have a two-person-per-bedroom minimum (a very general standard; the caveats go on for pages).

Another problem area is the language “terms, conditions, or privileges” and “any preference, limitation, or discrimination.” Those have come to mean that rules and lease terms can’t favor families without children as opposed to those with. That’s why you can’t say, families with children can’t rent a unit with a balcony, or we prefer families with children rent units close to the playground. You can’t say Mexicans live in this building and whites in that one (that really happened, in southern California). The general rule is, treat everyone the same.

Rules are where problems mostly occur. One attorney who specializes in fair housing litigation told me he can always find something in an apartment complex’s rules that violates the law. Simply using the word “children” is a flag. It should, he said, be used very cautiously.

That doesn’t prohibit you from adopting rules for safety reasons. It’s just best that you not be the one deciding what’s safe. For instance, an Oregon Administrative Rules says, “children under 14 years of age shall not use the pool unless a lifeguard is present or… a responsible adult observer is present.” So if you have a rule saying that, you’re not deciding what’s safe; Oregon is. Similarly with exercise equipment. If you rely on the manufacturer’s safety instructions to determine who can use the equipment, you should be on safe ground.

When you make up your own rules, think them through clearly. If you don’t want kids riding their bikes in the parking lot, don’t you really mean you don’t want anyone riding a bike there? So when you write the rule, try to substitute anyone or everyone or residents or residents and their guests for children. The rule should still make sense. Better yet, have the rule address the behavior itself, not classes of people. The Fair Housing Council of Oregon suggests “rules that set limits may be reasonable if they are based on realistic not exaggerated health and safety concerns.”

Finally, rules shouldn’t be so restrictive that they have the effect of discouraging families from renting from you. The law refers to “any statement… that indicates any preference [or] limitation.” Other than a downtown high-rise, any apartment complex should have some space where children (and adults) can play.

So if you use the word children, do so cautiously. The Housing Authority of Portland says in its rules “If you have children, it is your responsibility to know their whereabouts and to see to it they respect the quiet hours and other people’s property.” I think that’s right on the edge. All residents should respect the quiet hours and other people’s property. Yes, parents are responsible for supervising their children, but I don’t know that parents can be required to know where their 17-year old children are. The same applies to your rule. Parents are responsible for the conduct of their children, but supervise strikes me as a bit strong, particularly for an older teenager. I used to have in my rules “Parents are responsible for the conduct of their children,” because it’s so; but I’ve taken it out: it’s the law, whether I say it or not.

The problem with such rules is that, even if legal on their face, they can still get you in trouble. If someone makes a fair housing complaint, an investigation is going to look at all aspects of your business, Having an unnecessary rule that can be construed against you isn’t worth the risk.

My usual reminder: each circumstance is unique, so your case will be different. Before you act, be certain about what you do. Don’t rely solely on this general advice; read the law and consult others as appropriate.

This entry was posted on Saturday, April 30th, 2005 at 8:30 pm and is filed under rules, discrimination, familial status, children. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.