Understanding Familial Status and Its Protection Under the Fair Housing Act
The Inclusion of Familial Status as a Protected Category
In 1988, during a period of high-interest rates, many young families were unable to afford homeownership, leading them to turn to the rental market. Unfortunately, landlords at that time frequently refused to rent to families with children, going so far as to run ads explicitly stating “no children” or rejecting applications from families with kids. Recognizing this discriminatory practice, the Fair Housing Act was amended to include familial status as a protected category. Familial status protection extended to families with individuals under the age of 18, including biological, foster, or adopted children, as well as pregnant women.
Exceptions to Familial Status Protection
The Housing for Older Persons Act (HOPA) introduced a specific exception to familial status protection to accommodate retirement housing. However, this exception does not apply to deeply subsidized housing or properties under the purview of the U.S. Department of Housing and Urban Development (HUD). To qualify for the HOPA exemption, a property must meet one of the following criteria:
- All residents must be 62 years or older.
- At least 80% of the property’s units have a head of household or at least one individual aged 55 or older. The remaining 20% can have younger occupants but no children.
Additionally, the property must advertise itself as a retirement community, with community rules and policies clearly stated in the lease agreement. HUD properties designated as “elderly properties” cannot refuse occupancy to children if the household otherwise qualifies, as they are federally funded and subject to fair housing laws.
Common “Accidental” Familial Status Violations
Familial status violations represent 25% of all fair housing complaints, partly due to the complex interpretation of the law. Property owners and staff must be aware of potential discriminatory practices to avoid unintentional violations. Three common accidental violations include:
Safety Issues: Implementing rules that discriminate against children, such as restricting pool access based on age, can lead to violations. Instead, property rules should focus on safety and competency, such as requiring swimmers to know how to swim.
Occupancy Limits: Adhering to the two-person per bedroom occupancy standard is a common practice, but other factors, such as room types and sizes, should be considered. Compliance with building and fire codes is also crucial.
Steering: While property managers may believe they are acting in the best interest of prospects, statements that imply that there aren’t a lot of children living here or perhaps another building closer to a park would be better can be viewed as discriminatory. It is best to let prospects ask questions and carefully document responses during tours.
Understanding familial status and its protection under the Fair Housing Act is crucial for property owners and staff. Regular and up-to-date training is essential to navigate the complexities of familial status regulations and maintain ongoing compliance with fair housing laws.
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