Landlords Agree to $3 Million Settlement in California Housing Discrimination Case

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Property manager Vasona Management, Inc., a (Manager) recently attempted to impose blanket prohibitions on children’s activities at nearly 50 California apartment complexes. The State of California Civil Rights Department (CRD), an enforcement partner for the Department of Housing and Urban Development (HUD), recently entered into a consent decree with the Manager and the property owners after determining those restrictions violated California’s version of the Fair Housing Act’s (FHA) prohibition on discrimination based on familial status.

This article discusses the consent decree and what landlords and management companies can do to minimize the possibility of similarly being accused of violating the FHA.

What Was the Case About?

The following Manager practices were the subject of CRD’s allegations:

· Children were not permitted to play outside at the apartment complexes Manager operated

· An adult was required to supervise children under the age of 14 whenever they were in apartment complex common areas

· Tenants who violated these rules were subject to eviction

CRD alleged these rules and practices were discrimination based on familial status, which violates the FHA (California’s law prohibits discrimination against families with children under age 18).

Why the Restrictions Were a Problem

Since the case was settled, details about the parties’ allegations aren’t available. However, the total ban on outdoor play was likely one reason CRD started enforcement action.

CRD also may have considered 14 as the minimum age children could be alone in the common area to be arbitrary. The age was so high it might have indicated hostility toward families with children rather than a legitimate safety concern.

The Manager’s rules violated the FHA by triggering more evictions for families with children. Further, the rules likely discouraged families with children from renting apartments at complexes managed by Manager.

What Rules the Manager Might Have Been Able to Have Instead

That doesn’t mean an apartment manager can’t restrict tenant behavior. Restricting where children could play might have passed muster. Prohibiting children (or, for that matter, anyone) from playing in roadways and parking areas might have been reasonable for the safety of motorists and children. But prohibiting all play on sidewalks is less likely to have passed muster.

Also, apartment complexes with pools frequently have a minimum age at which children can be in the pool without adult supervision. An alternative rule, while challenging to police, is to limit access to deeper areas of the pool to individuals (regardless of age) who have passed a swimming test – such as demonstrating the ability to swim across the pool without touching the bottom – or who can stand in the pool without their head being under water. Such restrictions are based on height and swimming skill rather than age.

Still, unsupervised children roughhousing in a pool could cause serious injury or death if a child were, for instance, to hit their head – even if the children can swim. Limiting the number of people in the pool at once (regardless of age) makes accidental injury less likely and makes it easier to see if someone is in distress. Plus, local pool licensing laws may dictate how many people can be in the pool, on which the apartment manager can rely. And requiring supervision of young children may be reasonable, provided the supervisor’s age is reasonable.

Complexes also might have a minimum age to use fitness center equipment. However, those restrictions are driven by health and safety concerns. Young children also could injure themselves on fitness equipment not designed for their size and strength. Some manufacturers even state specific equipment isn’t suitable for children under a specified age. I’ve also seen both minimum and maximum age restrictions on playground equipment, often based on manufacturer safety recommendations.

Requiring adult supervision for young children in common areas might have been acceptable. For instance, an apartment manager could reasonably impose rules consistent with state law. In Maryland, where my office is located, children under age eight must be supervised. The minimum age for that supervisor is age 13. An eight-year-old may be left alone for a brief time. Maryland’s law requires that children be provided contact information for a responsible adult they can reach if necessary.

Violating Maryland’s law is considered child neglect and could result in parents being criminally charged. So, an apartment manager in Maryland could reasonably require that all children under eight be supervised by someone over age 13 when in the common areas.

However, most states, including California, don’t have a law that specifies the age at which a child need not be supervised. In those states, property managers face the challenge of adopting safety rules without discouraging families with children from renting apartments, which could be familial status discrimination.

Best Practices for Apartment Community Rules

• If there are state or local laws or guidelines about when children may be left unsupervised, match them in community rules.

• If there are manufacturer age guidelines for the use of equipment, follow those in the community rules.

• Be certain restrictions on children’s activities in common areas are based on legitimate health and safety concerns.

• Don’t make restrictions broader than necessary to address health and safety concerns.

• Consider imposing restrictions for all ages. For instance, management may close the tennis courts at a specified time, after which no one can use them, regardless of age. Or, management may limit the number of people in the pool at one time or prohibit non-swimmers from going in the deep end.

• Noise-based restrictions might pass muster as long as they apply to both children and adults.

• Consider phrasing some rules as “recommendations” rather than blanket requirements.

• Engage in a dialogue with families and explain why rules are necessary for health and safety.

• Listen to tenant concerns and, where appropriate, adjust the rules.

• Rather than immediately evicting families that violate rules, communicate why the rules are in place and attempt to secure compliance.

• Regularly evaluate whether rules are discouraging families with children from living in the community. If so, change the rules.

Source: JD Supra