Familial Discrimination – What it is and are you doing it?

By January 6, 2015HOA

The U.S. Department of Housing and Urban Development (HUD) recently announced a settlement with a Denver HOA in resolution of claims that the HOA was discriminating against families. The settlement arose from a HOA promulgated rule requiring adult supervision of children at all times and banning any sport or extra-curricular activities. As a result of the settlement, the HOA was required to design and build a $10,000 play area, revise and amend all rules and regulations to be in accordance with the Fair Housing Act and have all employees attend Fair Housing training.  In order to avoid costly ramifications such as these, HOAs and management companies must be conscious of the Fair Housing prohibition against familial discrimination and understand how to maintain compliance with the standards.

The Fair Housing Act prohibits discrimination in housing because of familial status. The Fair Housing Act defines familial status as “one or more individuals (who have not attained the age of 18 years) being domiciled with (1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.” The Act provides that housing providers may not deny or otherwise make unavailable housing to families. Additionally, it prohibits housing providers from imposing any special restrictions or conditions on the use of a unit or facilities upon children or families.

While it is common for HOAs to set certain limitations on the use of common areas or common elements, those limitations must be written and enforced in accordance with the Fair Housing Act. The following are actions that have been deemed to violate the Fair Housing Act’s prohibition on familial discrimination: limiting occupancy of each room in an apartment  to one person, See United States v. Badgett, 976 F.2d 1176, 1180 (8th Cir. Ark. 1992); maintaining separate pool facilities for children and adults and prohibiting children’s activities in adult designated areas, See Llanos v. Estate of Coehlo, 24 F. Supp. 2d 1052, 1060 (E.D. Cal. 1998); banning children from running or playing inside common area buildings, See Fair Hous. Congress v. Weber, 993 F. Supp. 1286, 1291 (C.D. Cal. 1997); discouraging the rental of a unit by exaggerating certain drawbacks that make the unit unsuitable for children, See United States v. Grishman, 818 F. Supp. 21, 23 (D. Me. 1993); advertising a community or unit in such a way that expresses a preference for mature persons only, See Jancik v. Department of Hous. & Urban Dev., 44 F.3d 553, 556-57 (7th Cir. 1995); requiring adult supervision of children at the pool at all times, See Fair Hous. Congress v. Weber, 993 F. Supp. 1286, 1295 (C.D. Cal. 1997) and Iniestra v. Cliff Warren Invs., Inc., 886 F. Supp. 2d 1161, 1167-1168 (C.D. Cal. 2012); implementing and enforcing a three person per lot occupancy requirement at a mobile home association, See HUD v. Mountain Side, 08-92-0010-1; requiring adult supervision of all children under the age of 10 while outside, prohibiting children under the age of 18 from using the clubhouse without adult supervision, prohibiting children under the age of 12 from using the pool table, and requiring children under the age of 18 to abide by a 10:00 PM curfew, See Pack v. Fort Washington II, 689 F. Supp. 2d 1237, 1243-46 (E.D. Cal. 2009).

There are two ways actions may be viewed as discrimination based on familial status. Facially discriminatory actions are those which explicitly discriminate against families with children by treating them differently than families without children. If a policy or rule is discriminatory on its face, the person or entity enforcing the policy or rule must show that it has a legitimate non-discriminatory purpose. Specifically, it must be demonstrated that the rule either benefits families with children or responds to legitimate safety concerns. Courts are not willing to blindly accept safety concerns as a legitimate justification for a rule or policy absent a showing of how the rule addresses an actual safety problem. Additionally, thought a rule may be facially neutral, it can be considered discriminatory if it has a disparate effect on families with children. If that is the case, the person or entity promulgating the rule or policy must demonstrate a legitimate non-discriminatory purpose for such.  Again, courts will not accept superficial reasons for the disparate impact.

HOAs should be cautious when drafting and implementing rules or regulations that disparately affect children or families, such as those listed above.  It is always a good idea to consult with counsel regarding the rule and any justifications for its use prior to adopting or enforcing the rule.  Counsel will be able to assist in limiting the possibility that the rule or policy would be considered discriminatory and reduce the potential for liability and other adverse outcomes.

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