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Legal update on familial status.

The federal Fair Housing Amendments Act of 1988 brought sweeping changes to housing law, perhaps most notably by outlawing for the first time discrimination against families with children.

Since the Act became effective in March 1989, court and administrative interpretations have clarified certain aspects of the familial status law, but also have highlighted the traps that remain for unwary landlords and managers and their counsel.


The Act amended Title VII of the Civil Rights Act of 1968 (42 USC [sub-sections] 3601-3619) by expanding the definition of prohibited housing practices to include discrimination based on familial status. "Familial status" means a child or children under age 18 living with a parent or person with legal custody of the child. The familial status protections also apply to pregnant women and to persons in the process of securing legal custody of a child under age 18.

"Housing for older persons" is specifically exempt from the law.

The U.S. Department of Housing and Urban Development administers the Act. Discrimination complaints can be heard and resolved by HUD's Administrative Law Judges, or AlJs.

Occupancy limits

Regarding occupancy limits, the Act states only that it does not limit the applicability of any reasonable local, state, or federal restrictions regarding the maximum number of persons permitted to occupy a dwelling.

In its preamble to the 1989 regulations implementing the Act, HUD provided no further guidance on appropriate limits, except to say that owners and managers may implement occupancy requirements "based on factors such as the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit," so long as those rules do not unreasonably limit or exclude families with children.

Some specific standards for occupancy limits have evolved through application and interpretation of the Act by HUD AlJs and other HUD officials since 1989. The following are summaries of the major rulings in this area.

* Occupancy rules for parents and children must be the same as for adults. In the case of HUD v. Properties Unlimited, as reported in the Fair Housing-Fair Lending Reporter (August 5, 1991), the challenged occupancy policy prohibited a parent and child from occupying a one-bedroom apartment while allowing two adults to occupy a similar apartment.

A HUD ALJ found the owner and manager of the apartment complex liable for familial status discrimination when they refused to rent an 800-square-foot, one-bedroom apartment to a pregnant woman, offering instead a two-bedroom apartment. The manager also violated the law by falsely telling the woman that there were no one-bedroom units available for rent.

The owner and manager were required to pay the complainant $1,500 for out-of-pocket expenses and $2,500 for "inconvenience and emotional distress," as well as a $2,000 fine to the government.

* A policy of one child per two-bedroom unit is unlawful. In HUD v. Denton, reported in the Fair Housing-Fair Lending Reporter on November 12, 1991, a HUD ALJ found that a policy allowing only one child per two-bedroom apartment constituted discrimination based on familial status.

The judge was not persuaded by testimony from an architect that the bedrooms and the water heating system allowed for no more than three people per unit. Further, the landlord's good-faith belief that the policy complied with the law was no defense.

In that case, the manager violated the law when he cited the occupancy limit as grounds to evict a family of four. The judge awarded damages to the family in the amount of $210 for out-of-pocket expenses, $3,000 for the inconvenience, and $10,000 for emotional distress. The judge also assessed a fine of $2,000 payable to the Secretary of HUD.

* "One-plus-one" rule is discriminatory. An occupancy policy can be discriminatory even if it places no specific limitation on children. The owners of an apartment complex paid damages in excess of $2,000 plus a $10,000 fine to settle a claim of familial status discrimination for requiring that each unit be restricted to one person per sleeping space plus one additional person.

The HUD ALJ cited evidence that the policy had a disproportionately large impact on families with children, and that it had been adopted for the purpose of limiting the number of children in the complex. The ALJ specifically noted that at least ten other families had been excluded from the complex, or directed to larger apartments, based on family size.

In addition to the payment of damages, the parties' settlement also provided that the apartment complex would adopt an occupancy policy no more restrictive than two people per bedroom. (Fair Housing-Fair Lending Bulletin, Vol. VII, No. 6, December 1, 1991.)

* Room size may be relevant to analysis of occupancy limits. In declining to prosecute a charge of discrimination regarding a mobile home park's occupancy limit, HUD took into account bedroom size. The park's policy barred occupancy of any mobile home by more than two people.

HUD declined to prosecute a complaint of familial status discrimination when the park refused to allow a couple !with one child to move into a two-bedroom mobile home. HUD found that, because the home's second bedroom was very small - only 5.4 feet by 8 feet - the policy limiting occupancy to two people was reasonable. Bulletin, Vol. VI, No. 9, March 1, 1991.)
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Author:Bauman, Lori Irish
Publication:Journal of Property Management
Date:Jul 1, 1992
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