Familial Status as a Protected Class

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What does the phrase "familial status" mean?

"Familial status" means having a child under age 18 in the household, whether living with a parent, a legal custodian, or their designee. It also covers a woman who is pregnant, and people in the process of adopting or gaining custody of a child/children.

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What actions does the law prohibit?

No one may deny housing, limit access to housing, discourage home seekers, or create different rules, fees, or standards because the family has or is expecting (a) child(ren). This includes rentals, purchases, lending, advertising, and any other transaction within the housing industry.

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Does this mean that a housing provider can not deny or treat any household with children differently?

No. A housing provider has the right to refuse residents based on objective criteria, such as a credit history or bad tenant history. However, housing providers should set criteria and apply them equally to each household whether it has children or not.

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Can a housing provider say “Families Welcome” in their advertising?

Yes. It is okay to market to families with children. Indicating that families are welcome in a community does not deny any other protected class the opportunity to apply for housing.

When discussing or advertising a unit, do not point out that there is no on-site play area or that the community is on a busy street, unless this information is given to all applicants. Avoid words or phrases such as “adult community” or “perfect for matureprofessionals”, which reflect a preference for residents without children.

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Can a housing provider make rules about how children should behave?

Reasonable rules are appropriate, but not everyone agrees what is "reasonable." Here are some guidelines. In general, rules should apply to all residents, and not just children. Rules that set limits may be reasonable if they are based on realistic not exaggerated health and safety concerns. Rules should address behavior, not status and should not be so restrictive that families with children do not get equal use and benefit of the housing.

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Teenagers and Screening

We’ve had problems with teenagers causing property damage. Can we refuse families with teens or charge them a higher damage deposit?

No. Familial status protections apply to all children under the age of 18. Don’t single out a certainage group of children, such as teenagers. Under some local fair housing laws, this would be age discrimination as well. Making a generalization based on the actions of some residents (in this case teenagers) and creating a blanket rule based on that generalization will likely violate fair housing laws.

We run criminal background checks on our adult applicants. Can we run them on teenagers too?

Fair housing laws may be violated if a rule is applied that only affects families with children, or when a neutral policy that is applied to all residents adversely impacts families with children. [Example:Requiring screenings for children could subject a family to additional fees, which would make the application process more burdensome for them.] If a housing provider has a policy of screening juveniles only in certain properties and/or neighborhoods, an issue of race or national origin discrimination might be raised. If the housing is in a jurisdiction where age is a protected class, such screening may constitute age discrimination.

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Can a housing provider decide which units are better for families with children?

No. Designating specific units for families with children is called "steering" and is illegal. Housing providers should give all potential residents objective information about what is available and let applicants decide what unit is suitable for their household.

Safety concerns are not a valid reason to deny housing to families with children. If an unsafe condition exists on the property, consider making it safe for all residents to avoid general liability forinjuries. If that is not feasible, point out safety concerns to every applicant, not just families with children.

Also, HUD guidance states that it violates the Fair Housing Act for a housing provider to deny a family the opportunity to live in a dwelling that has not undergone lead hazard control. For more information on this issue visit www.FHCO.org/lead.htm.

Is it okay to refer families with kids to a building near the playground and to have another quiet building for residents without children?

No. This is another example of "steering" and it is illegal. If a housing provider were to designate certain buildings as “non-family” housing, a family might be denied a place to live until arental became available in the “family” building. All applicants should be shown any available units at the community. Let them decide where they would like to live. If an existing resident asks that a nearby unit not be rented to a household with children because they might be too noisy, explain that housing decisions are not made based on protected class, such asfamilial status.

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Can a housing provider set limits on the number of occupants?

Overly restrictive occupancy standards can have a disproportionate affect on families with children and are, therefore, illegal. According to HUD, any occupancy standards in housing should not be more restrictive than two indviduals per bedroom, assuming average sized bedrooms.

We told a couple with a teenage son and daughter they must take a three-bedroom apartment, so their kids don’t share the same bedroom. Is that okay?

No. Denying a two-bedroom rental to a family because they have children (of any age) of opposite sexes, or requiring them to choose a larger unit, is a direct violation of fair housing laws based on both familial status and gender.

For more information on this issue visit www.FHCO.org/occupancy.htm.

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May I charge per person?

No. Fees or surcharges for extra occupants have a greater negative effect on families with children than on households without children.

If an extra amount is charged, it must be based on actual (not assumed) increased utilities use or other legitimate business costs. Many communities have installed individual utility meters to monitor costs directly.

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Is there any type of housing exempt from these requirements?

The only type of housing that is excluded from familal status protections is qualified housing for seniors. Those who intend to operate senior housing should get adequate information about meeting the qualifications.

The first place to start is with the language of the Fair Housing Act itself (http://www.justice.gov/crt/about/hce/title8.php) which states, in part...

No provision in this title regarding familial status apply with respect to housing for older persons.

(2) As used in this section "housing for older persons" means housing --

(A) provided under any State or Federal program that the Secretary determines is specifically designed and operated to assist elderly persons (as defined in the State or Federal program); or

(B) intended for, and solely occupied by, persons 62 years of age or older; or

(C) intended and operated for occupancy by persons 55 years of age or older, and--

(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;

(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and

(iii) the housing facility or community complies with rules issued by the Secretary for verification of occupancy, which shall--(I) provide for verification by reliable surveys and affidavits; and(II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification.

(3) Housing shall not fail to meet the requirements for housing for older persons by reason of:

(A) persons residing in such housing as of the date of enactment of this Act who do not meet the age requirements of subsections (2)(B) or (C): Provided, That new occupants of such housing meet the age requirements of sections (2)(B) or (C); or

(B) unoccupied units: Provided, That such units are reserved for occupancy by persons who meet the age requirements of subsections (2)(B) or (C)

...(5) (A) A person shall not be held personally liable for monetary damages for a violation of this title if such person reasonably relied, in good faith, on the application of the exemption under this subsection relating to housing for older persons.

(B) For the purposes of this paragraph, a person may only show good faith reliance on the application of the exemption by showing that--

(i) such person has no actual knowledge that the facility or community is not, or will not be, eligible for such exemption; and

(ii) the facility or community has stated formally, in writing, that the facility or community complies with the requirements for such exemption.

Two other excellent resources in this area is HUD's Final Rule on the Implementation of the HOPA (www.FHCO.org/pdfs/HOPAfinalRule.pdf) and HUD's HOPA Q&A document (www.FHCO.org/pdfs/HOPAQ&A.pdf). These two documents collectively answer a good deal of questions about the senior housing exemption to familial status protection.

The key to this exemption is not the desire to exclude children but the intent to providing for seniors.

To be clear, there are only 2 legal definitions of senior housing--55+ or 62+. Now, neither HOPA nor the FHA change the definition of "elderly family"' in federally assisted housing programs and HUD advises federally assisted housing providers to continue look to existing program statutory and regulatory requirements to determine tenancy of those developments. That being said, any other definitions in the private, nonsubsidized market (ie: 18+, 40+, 50+, etc.) are not legal.

Related Resources:

• FHCO's Guidebook For Senior Communities
• HUD's "Significant Facilities" Rule for Seniors-Only Housing is Eliminated (1995)

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How can I learn more about my fair housing rights and responsibilities?

Visit our FAQs page.

Contact us at 800/424-3247 or information@FHCO.org

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