4 Dos & Don’ts for Dealing with Families with Children

HUD recently charged two separate sites with discriminating against families with children. In one case, a Rhode Island site owner steered fair housing testers claiming to have children away from the site [HUD v. Francis, FHEO No. 01-19-2644.8]. Another case involved owners in Wyoming imposing overly restrictive policies on families with children [HUD v. Gunnarson, FHEO No. 01-19-2644-8]. Targeted site rules such as a curfew and a requirement for children to be supervised in common areas were imposed against children.

For each of these owners, the cost of these charges could add up quickly. First, HUD’s charges in both cases will be heard by a United States administrative law judge unless either party to the charge elects to have the case heard in federal district court. If an administrative law judge finds, after a hearing, that discrimination has occurred, he or she may award damages to the family for harm caused by the discrimination. The judge may also order injunctive relief and other equitable relief, as well as payment of attorney’s fees. In addition, the judge may impose fines to vindicate the public interest. If the matter is decided in federal court, the judge may also award punitive damages.

To help you avoid fair housing trouble when it comes to families with children, we’ll discuss the particulars of the cases and give you four guidelines to help you comply with fair housing law.

DON'T Discourage Families with Children from Living at Your Site

The Fair Housing Act (FHA) prohibits owners from denying or limiting housing to families with children under age 18, including refusing to negotiate and making discriminatory statements based on familial status. In the Rhode Island case, three different fair housing testers told the leasing agent that they had children. During the telephone inquiries, the agent told the testers that: (1) they should look for housing in another area because of their children; (2) the old building had elevated lead levels and as a result the owner didn’t like to rent to families with kids; and (3) since the neighborhood had a high percentage of local university students, “like-minded” people should live together. The agent said he’d be wasting the tester’s time to email him if any apartments became available.

Unless your site complies with the requirements to qualify as senior housing, you may not refuse to rent a unit based on familial status. Under federal law, familial status includes a child under age 18 living with a parent or guardian, or with an individual authorized by the parent or guardian. It also includes pregnant women and an individual in the process of securing legal custody of a child under age 18.

Beyond an outright refusal to rent to families with children, statements that discourage families with children from residing at your site are banned under fair housing law. The FHA makes it illegal 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…familial status” [42 USC §3604(c)]. The law applies to both oral and written statements. A violation occurs when you use words or phrases that would suggest to an ordinary listener that adults are preferred or children are disfavored at your site.

It’s important to note that although the dangers of lead-based paint to young children are recognized by Congress and a number of state legislatures, affected sites can’t avoid renting to those most at risk. Under fair housing law, regardless of the presence of lead-based paint, sites may neither exclude nor discourage families with young children from living there.

DON'T Steer Families with Children into Particular Areas or Units

Guiding families with children to or away from certain units or areas within your site is also a violation of fair housing law. The FHA prohibits “steering”—that is, encouraging or discouraging prospects to live in a particular part of a site because of their race, sex, color, national origin, disability, religion, or familial status.

Don’t steer families with children to a particular area, even if you think the children would be happier there. For example, you shouldn’t encourage a family with children to choose a unit near the playground simply because it would be more convenient for them. Likewise, you may not steer families with children away from units on upper levels of your site. Even if you have legitimate concerns over the safety of young children—such as if those units have balconies—you may not discourage or refuse to allow families with children to live there. However, under the HUD guidelines, a site does not engage in unlawful steering by recommending a unit to families with children under the age of 6 where lead-based paint hazards have been controlled.

DON'T Set Rules that Unreasonably Burden Families with Children

Your site may set reasonable rules to protect children’s safety and respect their neighbors’ right to enjoy the property. But you must be careful that your rules don’t unfairly single out children. In the Wyoming case, FHEO decided the resident who filed the complaint and her children were subject to unreasonable rules. According to the charge, the owner issued new site rules. The rules were contained in the following notice posted on residents’ doors:

Due to the NUMEROUS complaints we have received regarding unsupervised children disrupting the peace of the community at all hours of the day and night these rules will be going into effect IMMEDIATELY:

• Children 12 and under must be supervised by an adult while outside.
• The playground area and field with the basketball hoop are the ONLY designated play areas—there will be no more playing or hanging out behind building, entryways/stairwells, in parking lots or in the dog park.
• Curfew is 9pm—children should not be left outside unattended after hours.
• Excessive noise will not be tolerated.

*If you are a resident who is being disturbed due to any of these abovementioned issues please do not hesitate to relay any information to the office. If behavior continues LEASE VIOLATIONS AND POSSIBLE EVICTIONS will be delivered.

The resident who filed the complaint tried to follow the rules. She generally kept her children inside her unit because she was unable to provide adult supervision for them outside as her husband worked out of town and she needed to be inside to care for their baby. Because the children were prohibited from playing anywhere else on site aside from the two “designated play areas,” the large grassy areas contained within the site, including the field behind her unit, were off limits for the children. As a result, she could no longer supervise her older children in the open field behind their unit through the glass sliding door. She would take the older children outside to the designated play areas for short periods of time when she could bring the baby, but the children often wanted to remain outside. Her family eventually moved out but faced limited options for affordable housing.

FHEO’s charge states that as a result of the owner’s discriminatory conduct, the resident and her children suffered actual damages including, but not limited to, emotional distress, loss of housing opportunity, inconvenience, and economic loss.

Rules governing residents’ behavior in common areas, such as hallways, parking lots, and outside spaces serve a legitimate purpose: to protect property and ensure safety. But you could trigger a discrimination claim if your rules unreasonably target children or limit their behavior. Therefore, don’t adopt lease clauses and site rules that specifically ban children from doing things you don’t want adults to do either.

To avoid triggering a fair housing complaint, consider adopting a rule that targets the problem behavior, rather than its source. For example, if you’re concerned about children misbehaving or making too much noise in hallways, consider adopting a rule that bans all loud, unruly behavior in the hallways, instead of specifically targeting children.

Rules banning children from playing outside, unduly restricting their access to amenities, or requiring adult supervision of all children under 18 could lead to accusations that you’re treating families with children less favorably than adult households living at the site.

Even if your rules don’t unfairly single out children, you have to ensure that you don’t enforce your rules in a discriminatory manner. It would be a violation of fair housing law if, for example, you enforced rules against disruptive behavior in hallways only against children playing in the hallways. Consistent application of your rules is the key to protecting your site from discrimination complaints from families with children.

DO Make Sure Child-Targeted Rules Are Reasonable and Necessary

Your site may establish rules targeting children’s use of your facilities, such as your pool or fitness center, as long as the rules are reasonable and necessary to protect their safety. For example, you have legitimate concerns about children’s safety if you have a pool at your site. While it may allay your fears to ban children from using the pool under any circumstances, adopting such an unreasonable rule would amount to discrimination “in the terms, conditions, or privileges” of rental units, based on familial status.

But it would be lawful to impose conditions that are both reasonable and necessary to protect children’s safety when using your pool, such as requiring adult supervision for children under a certain age. Having an objective source—such as state and local law—will help prove any child-targeted rules are reasonable and necessary.

How HUD’s Enforcement Process Works

HUD’s Office of Fair Housing and Equal Opportunity (FHEO) works to eliminate housing discrimination by leading the nation in the enforcement, administration, development, and public understanding of federal fair housing policies and laws. One of FHEO’s most important activities is to investigate fair housing complaints.

FHEO begins its complaint investigation process shortly after receiving a complaint. A resident or applicant must file a complaint within one year of the last date of the alleged discrimination under the Fair Housing Act. Generally, FHEO will either investigate the complaint or refer the complaint to another agency to investigate.

Throughout the investigation, FHEO makes efforts to help the parties reach an agreement. If the complaint can’t be resolved voluntarily by an agreement, FHEO may issue findings from the investigation. If the investigation shows that the law has been violated, HUD or the Department of Justice may take legal action to enforce the law.