Beware of . . . Children?

THE NARRATIVE

Clint is the property manager of a mid-size suburban apartment complex called Eastwood Village. The complex markets itself as a quiet community where its residents can get away from the hustle and bustle of the city. The owner has directed Clint to create and strictly enforce rules that will ensure a quiet and orderly community.

To that end, each resident is required to sign a lease in which they agree not to disturb other residents, that children under the age of 16 are not to use the amenities without supervision by an adult, that children under the age of 16 are not to be left in a rental unit without supervision by an adult, and that children are not allowed to play in common areas, with or without supervision. To promote awareness, Clint made sure that these rules were posted in conspicuous places throughout the property, at the swimming pool, the clubhouse, and the laundry room.

One afternoon Clint met with a gentleman who was interested in renting at Eastwood Village. As Clint was telling him about the property, he emphasized that it was a quiet place and that everyone in the community seemed to get along well. The gentleman told Clint that he was recently divorced, but had custody of his two sons, age 13 and 8, who would be living with him most of the time. Clint told him that there were not many other children at Eastwood Village, but that they did permit children. The man had noticed the signs on the property indicating that children under 16 could not use the amenities or be alone in the rental units without adult supervision. He asked Clint about these rules, as he knew there were times that he would need to leave the children together at the unit for brief periods until he got home from work, and that there might be times when the older son would need to use the laundry facilities. Clint confirmed the rules of the community against this type of activity, and informed the gentleman that, unfortunately, Fair Housing rules prevented him from making an exception to the rules unless a tenant was disabled.

The gentleman left without filling out an application. Later that week, a married couple met with Clint to find out more about Eastwood Village. They, too, asked about the whether they might be able to allow their children, ages 15 and 11, to be at home alone or to use the laundry room without the parents being present. Again, Clint expressed sympathy for their circumstances, but let them know that he could not make an exception for them. This couple also left without completing an application.

Clint was simultaneously disappointed at being unable to fill a couple of vacancies on the property, but recognized that some people are just not a good fit at certain properties. He discussed the incidents with his owner during their weekly conference call, and the owner assured him that he had done the right thing, as the property wanted to maintain its reputation as a quiet suburban community, and to make exceptions would have both compromised that reputation and been a violation of Fair Housing law.

The encouragement from the owner was certainly uplifting to Clint. Unfortunately, that afternoon Clint received a certified mailing from HUD. As he signed for the mailing and opened it, Clint learned that he was being investigated for a violation of Fair Housing law. The complaint alleged that he and the owner of Eastwood Village had engaged in housing discrimination based on familial status. Apparently, those people who had visited his property and asked about the rules dealing with children were not actually interested in renting a unit, but were testers from the local fair housing office. They had recorded their conversations with Clint, had taken pictures of the posted rules, and had kept a copy of the proposed rental agreement, all of which detailed the community’s policies regarding age restrictions. 

A NEW CHARGE BY HUD

While this fact pattern involving Clint and Eastwood Village is hypothetical, it is not uncommon. In fact, this scenario closely mirrors a case that was filed this fall in which HUD charged an apartment complex with discrimination based on familial status. You can read the HUD's press release on the case here, and their charge here.

THE FAMILIAL STATUS RULES

The Fair Housing Act, passed by Congress in 1968, was amended in 1988 to include familial status and disability as protected classes. Kentucky’s Civil Rights Act, codified in KRS 344, also includes familial status as a protected class. Familial status has a lengthy definition, but it primarily means a person’s position as a parent, custodian, or guardian of a person under 18 years old. As a result, landlords are not allowed to discriminate against tenants or applicants based on the fact that they are a parent or custodian of a child. Policies, procedures, rules, advertisements, or publications that single out or demonstrate a preference against any protected class are discriminatory. As a result, policies that single out “children” or those under 18 are typically considered to be discriminatory towards parents and custodians of such children.

But isn’t it unsafe for children to play without supervision? In some cases, certainly. There aren’t many two year-olds who can play safely without supervision, but most 17 year-olds can. In between, it depends on the circumstances and the maturity and developmental level of the particular child. As a result, age-related restrictions, such as no one under age 16 in the laundry room, are frequently found to be arbitrary and having either the effect or intent of discriminating against parents with children under 18.

I am sympathetic to most of these age-related rules, as I understand that most such rules are an attempt to promote quiet communities, prevent damage to landlord property, and to prevent foreseeable injuries to tenants, as well as to prevent the liability to the landlord that often comes with those injuries.

So what’s a landlord to do?

Focus on conduct. Write your rules and policies to prohibit the conduct you wish to avoid, but do not focus on a particular group. In other words, if your goal is to prevent play in the streets, make a rule that no tenants are allowed to use the parking lots or streets for activities or loitering. Such a rule keeps people out of the danger areas, but applies to all rather than one group (children). 

When imposing age-related restrictions, follow manufacturer’s guidelines or state/local law. If you have a fitness center or other area containing equipment that creates safety concerns, you may follow the manufacturers’ guidelines for use of the equipment. Make sure you can document that any age-related restriction is from the manufacturer, not created by you out of thin air.

Also, any age-related restriction imposed by state or local law is allowable. For example, Kentucky law prohibits unsupervised children from using hot tubs or spas at public facilities. It further requires that a lifeguard must be provided at any public pool that allows people under 17 to swim without a “responsible person” age 17 or older present. In both cases, pools, hot tubs, and spas at apartment complexes are specifically covered. Thus, if your pool does not have a lifeguard, you can arguably make the same age-related restrictions without committing familial status discrimination.

Always use the least-restrictive alternative. For example, in our fitness center scenario, if you have five different pieces of fitness equipment, and only one of them has an age-related restriction (e.g., not for use by those under 15 without supervision), then limit the restriction to that piece of equipment only, not for the entire room.

Beware of discriminatory effects. A rule that no bicycles or tricycles are allowed on the property does not, on its face, single out any particular group and thus applies to all residents. However, it has the effect of discriminating based on familial status, as children are disproportionately impacted by such a rule. In these cases, think about the conduct you want to avoid and craft the rule to address it, rather than objects or classes of people.

When concerned about damage to your property (such as clubhouses, common areas, amenities, etc.), address it via increased security deposits or usage fees, rather than by age-related restrictions.

Contact authorities if you observe a child being endangered by lack of supervision. If you have a reasonable belief that a child is being neglected or abused, Kentucky law imposes a duty for you to inform the Cabinet for Health and Family Services, the county or commonwealth’s attorney, or the state or local police of the incident for investigation and potential intervention. But remember, this is a parent-child issue, not a landlord-tenant issue unless the unsupervised child is causing damage or disturbing others.

As always, if you have questions about whether your rules are compliant with Fair Housing law, contact your local attorney.