Posted on September 23, 2009 by Scott M. Badami

Mobile Home Park Pays Large Settlement to Settle Charges of Discrimination Based on Familial Status

 

We’ve talked a bit on this blog about the different classes that are protected under the Fair Housing Act ( "FHA") --  including race, national origin, sex, color, disability and familial status. Today, the Justice Department’s Civil Rights Division, along with the U.S. Attorney’s Office for the Southern District of Alabama and HUD made a joint announcement underscoring the consequences that arise when a property owner appears to discriminate against actual and prospective tenants on the basis of their familial status, and specifically based on whether those tenants have children. The government entered into a settlement agreement and the court issued a consent decree with the owners and managers of Pina’s Mobile Home Park to settle charges of discrimination against families with children. In settling the action, the defendants agreed to pay up to $104,130 to the victims of their discriminatory tactics, along with a $30,000 civil penalty to be paid to the federal government.

 

The lawsuit arose when HUD filed a charge on behalf of a prospective tenant who attempted to rent a home at the mobile home park, and was denied because the applicant was told she had too many children to live in the park. During the owner’s initial meeting with the Complainant, the owner allegedly indicated that there were vacancies in the park, but that families with children under the age of 18 were required to pay an additional $15 per month. Once the child reached 18 years of age, that fee would increase to $30 per month. In a second meeting, the owner of the park allegedly told the Complainant that the property’s rules only permitted families with two or fewer children to reside in the mobile homes. The Complainant, however, had three children. 

During HUD’s investigation, the owner stated that the park refused families with more children because “[i]f you have too many children, you have too many problems.”

 

As we’ve stated before: as a property owner, you cannot discriminate against any of the classes protected by the FHA and its state counterparts. Although you may have legitimate concerns that a large number of children concentrated in one unit of your property may cause “too may problems,” such as elevated noise levels, potential property damage, and an increased number of general liability issues, as a landlord, you cannot turn away a family based on their number of children if it meets the occupancy standards.

 

Furthermore, you cannot charge families with children additional rental fees to offset the additional repair costs that you fear may arise.  What you can and should do is determine what the applicable laws are concerning occupancy standards where your property located and ensure management follows that law.  

 

Just A Thought.

 

Article by Christian Moffitt.

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Posted on September 3, 2009 by Scott M. Badami

Occupancy Standards -- Why They Matter

When dealing with occupancy standards, it used to be easy. The traditional rule of “two heartbeats per bedroom” was perceived as the way to go. HUD published what was referred to as the Keating Memorandum back in the early 1990s which detailed this standard and it was considered generally reasonable.  Over the years, I successfully defended any number of cases based on the Keating Memorandum and the two person per bedroom guideline.  Many professional apartment management companies, including those I represent, adopted that standard. But that is not, of course, the end of the story.

Occupancy standards are useful because management has an absolute right to set reasonable, non-discriminatory limits as to how many people can live in a specific apartment. Yet management must be careful so as to not discriminate against a family with children. Those rational goals sometimes conflict.

 

Issues come up when a tenant gets pregnant and a family increases in size. Is it appropriate to ask a family to move to a larger unit? When is it appropriate to ask the family to move? What if the family cannot afford a larger unit? What if there are no larger units available? What if a family has twins? What should you ask an applicant about a pregnancy?

 

To be sure, the Keating Memorandum also made clear that there could be other factors which might change the analysis. Factors such as the size of the bedroom and the age of any children living in an apartment need to be taken into account. For example, if two bedrooms are large and/or if there is a spacious living area or study, a two person per bedroom standard might be unreasonably restrictive.

 

Additionally, some states (like California) and even cities (like Austin, Texas) have amended their laws such that in essence “two plus one per bedroom” is the new standard.

 

What should management do? First, check the law in your jurisdiction. If you don’t know where to find the standard, ask a lawyer. Then examine the size and configuration of your apartment units and develop a reasonable occupancy policy that does not unfairly discriminate against families with children. Again, if your bedrooms are large or there is additional living space, you may consider adding more than just two heartbeats per bedroom. 

 

Always be consistent in applying your occupancy standards. Management cannot make exceptions.

 

You cannot ask an applicant (or a current resident) about how many children they plan on having. You can certainly ask how many people will be living in the unit. When you ask, I recommend phrasing the question in terms of “people” as opposed to “children” so there will be less confusion about management’s intent. In my view, occupancy standards which limit the number of children per unit will be view more harshly than a standard which only refers to people living in a unit.

 

Management cannot discriminate against families with children. I have seen many discrimination cases based on familial status. They are never fun to defend against because any number of very cute children are involved. Setting reasonable standards – and informing applicants and residents of those standards – can help ensure that such a case never gets filed. 

 

Just A Thought.

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