Familial Status & Housing For Older Persons
Familial status is a protected class under the Fair Housing Act. It is illegal to discriminate against individuals and families who have minor children in their household, pregnant women, or anyone securing legal custody of a child under the age of 18. Examples of illegal discrimination against families with children include:
- “No children” policies
- Refusing families due to the ages of their children (for example, not allowing children under the age of 7)
- Segregating housing so that children are only allowed on certain floors or in certain buildings
- Stating that parents and children or boys and girls cannot share a bedroom—these types of decisions are the parents’ choice to make
- Evicting or not renewing the lease of a family or individual because of pregnancy or a child joining the family by birth, adoption, or legal custody
Safety Rules for Children in the Use of Housing Facilities
Although the Fair Housing Act does not prohibit a housing professional from creating rules that ensure the health and safety of all residents, it does prohibit rules and regulations that apply only to children when it comes to the use of housing facilities. Even though you may have a concern about the health and safety of children and/or increased liability if children are left unsupervised, it is important that all safety rules comply with the Fair Housing Act.
Housing professionals should be aware that any rule that restricts families with children from living on upper floors of a multi-story building or restricts families with children from living in certain sections of a building or complex are considered discriminatory. In addition, the following are some examples of regulations dealing with children’s use of housing facilities that may be considered overly restrictive:
- Restricting all children under the age of 18 access to housing facilities
- Requiring only children to take a swim test as a condition for access to a community swimming pool when adults are not subject to the same terms and conditions
- Restricting children from riding bikes on the walkways outside an apartment complex when adults are not subject to the same rule
- Restricting children from playing outside in courtyards or other grounds of an apartment building or complex or imposing unreasonable fees upon tenants with children in order to discourage such activities when adults are not subject to the same restrictions or fees
Tips for Creating Non-Discriminatory Safety Rules for All Residents
Overly restrictive occupancy policies and per capita charges for each additional occupant may violate the Fair Housing Act. You will want to be very careful in establishing occupancy policies for your rental units. Each rental unit will need to be considered individually, taking into consideration its layout, square footage, and code requirements such as existing means of egress (required exits for living and sleeping areas).
It is important that you read and understand your local municipality’s occupancy regulations. Most municipalities follow the International Property Maintenance Code (IPMC1). Section 404.4.1 of the 2021 IPMC establishes that every bedroom must contain at least 70 square feet of floor area and every bedroom occupied by more than one person must contain at least 50 square feet for each occupant.
Following the guidelines of the 2021 IPMC a “2 person per bedroom” limitation may or may not be reasonable depending on the size of the bedroom. Remember that overly restrictive occupancy limits can be challenged as having a disparate impact on families with children and may result in a legal challenge. When establishing your occupancy limits, you will want to take careful consideration of your local municipality’s occupancy codes and the 2021 IPMC. Limiting your occupancy beyond that which is required by law may prove to be expensive in the long run. Consult with your local fair housing agency if you have any questions or would like assistance in developing a fair housing compliant occupancy policy.
Per capita charges may not be arbitrary and must be based on actual increased costs that are directly related to additional occupants. For example, if you as the property owner pay the water bill, it may be reasonable to apply an additional small charge for additional occupants if you can document the actual increase in water usage and associated cost that you incur due to each additional occupant. Any per capita fees that cannot be justified by specific costs incurred by the housing provider may be considered different terms and conditions with a discriminatory effect on families with children. You may want to consider imposing equal rent increases for all tenants to cover these types of costs rather than risk an accusation of familial status discrimination.
1At time of publication, the 2021 International Property Maintenance Code is the latest edition of the IPMC. This can be accessed online at https://codes.iccsafe.org/content/IPMC2021P1
Q&A Familial Status
My rental property has very steep steps and the door opens onto a busy parking lot with many commercial trucks. I do not feel it would be safe to have small children living in this unit. Am I allowed to restrict the unit to only older children and adults?
My property has lead-based paint. I do not want children to be exposed to the lead. Can I reject families with children based on the presence of lead-based paint?
While you may have good intentions, you cannot discriminate against families with children, even if there is lead-based paint on your rental property. You do have a legal obligation to disclose the presence of lead-based paint on your property to any tenants. See Lead-Based Paint.
Can I set basic rules for safety without being accused of discriminating against families with children?
I have elderly neighbors who do not want to be disturbed by children. What can I do to protect their rights?
Are babies considered occupants? Can I refuse to rent to a pregnant woman if the new baby will cause the apartment to be over-occupied?
Infants are generally not considered additional occupants (even though they do seem to take up a lot of space!). It is unlawful to refuse to rent to a woman because she is pregnant. It is unlawful to refuse to rent to anyone because they will be adopting or securing legal custody of a child. There is no set rule on what age a baby or young child is to be considered an occupant. While this makes it difficult for you as the landlord to determine proper occupancy, you want to avoid discrimination based on familial status. Refusing to rent or forcing tenants to move into a larger bedroom apartment due to a new baby can result in a housing discrimination complaint. Consult your local fair housing group for individualized guidance on this issue.
Housing for Older Persons
The federal Fair Housing Act protects people from discrimination in housing based on race, color, national origin, religion, sex, familial status, and disability. Generally, the Fair Housing Act applies to all types of housing, with a few exemptions. One of the exemptions is for qualified senior housing, exempted by the Housing for Older Persons Act (HOPA).
“Housing for older persons” is exempt from the Fair Housing Act’s prohibition of discrimination against families with children in two categories:
- 100% of the occupants must be 62 years of age or older; or
- 80% of the occupied units must contain at least one resident who is 55 or older.
HOPA also requires that a facility or community seeking to claim the 55 and older exemption meet two additional conditions. The housing must be intended and operated for persons 55 years of age or older and the housing facility or community must publish and adhere to policies and procedures that demonstrate its intent to qualify for the exemption.
HOPA requires that a housing facility or community seeking the 55 and older exemption comply with HUD regulations on verification of occupancy. This should be performed through reliable survey, affidavit, or other documentation which confirms that the 80% threshold is being met. Copies of the information gathered in support of the occupancy verification may be kept in a separate file with limited access, for the sole purpose of complying with HOPA, and should be reviewed and updated every 2 years.
HOPA permits two ways a community can legally establish “housing for older persons” and qualify for the exemption to the Fair Housing Act. First, a community can convert to “housing for older persons” if 80 percent of its occupied units become occupied by at least one person 55 years of age or older. However, this must occur organically and the housing community may not obtain the 80 percent threshold by discriminating against families with children. Additionally, the facility or community cannot publish such policies or procedures in advance of meeting the 80 percent threshold as such policies and procedures would have a chilling impact upon potential applicants or current occupants who are families with children. Secondly, a housing provider may construct a new housing community or facility and meet the requirements set forth in HOPA.
The HOPA regulations state that simply advertising that this is an “adult community” is not sufficient to meet the standard of “publishing and adhering to policies and procedures that demonstrate an intent to qualify” as senior housing. Clear policies and procedures must be published and adhered to. When advertising, the guidelines state that the best practice is to refer to such housing as “Senior Housing” or “A 55 and older community” or “age-restricted housing” and discourages the use of the term “adult housing” or similar language.
While the use of the term “adult housing” or similar phrases, standing alone, do not destroy the intent requirement of HOPA, the regulations state that they send a clear message which is inconsistent with the intent to be housing for older persons. If a community or facility has clearly shown its intent in other ways, and meets the 80% requirement, then the intent requirement has been met even if the phrase “adult” or similar terminology is occasionally used. However, a community that describes itself as “adult,” leaves itself vulnerable to complaints about its eligibility for the exemption, which could result in an investigation or litigation to determine whether the community in fact qualifies for the exemption.