Feature
by Martin S. Snitow
Apartment rules, tenant rules, community rules, pool rules, clubhouse rules or parking rules—whatever you call them, they can promote peace and quiet as well as increased safety and more harmonious relations. These rules enhance the rental property’s appeal, reduce management problems and maintenance costs, and give fair warning to tenants of what type of conduct will lead to an eviction.
Apartment rules may not discriminate against families with children. Landlords also have a duty to change or make reasonable exceptions to rules and policies when necessary to accommodate persons with disabilities.
Rules Affecting Children
Apartment rules sometimes discriminate against families with children for the noblest reasons. Our society places a high value on protecting children from danger. Often a landlord will impose rules designed to safeguard children but, in doing so, winds up violating fair housing laws.
Some apartment rules appear unnecessary and intrusive to tenants. These are the ones that put a landlord most at risk. A tenant or applicant’s complaint about a rule is an urgent signal to reexamine it. Sometimes though you will not have this signal because the tenant is not required to complain about a rule before filing a lawsuit.
Discrimination against families with children is often difficult for a landlord to recognize. The landlord’s belief in fair housing and his/her intent not to discriminate will not necessarily protect against a lawsuit. Courts examine the impact of apartment rules and other policies to ascertain if they restrict families with children more than other classes of tenants.
Defending Rules That Affect Children
To win a fair housing claim, the tenant or rental applicant must only show that a rule treats households with children, and thus families with children, differently and less favorably than adult-only households. Once a plaintiff proves the rule affects children more than adults, the landlord must prove that the rules are the “least restrictive means” to achieve a “compelling business necessity.”
Defending a rule that affects families with children is not easy. Courts are often reluctant to accept a landlord’s opinion of what is a business necessity without supporting proof. Usually the testimony of an expert such as an engineer or other professional will be needed. A landlord’s testimony that larger family groups with children will overburden the hot water system will not be viewed as an acceptable position by the court. However, the landlord could justify his/her position by providing an engineer’s report that explains a new $1.63 million system is needed if the number of occupants increases (United States v. Weiss 847 F. Supp. 819 [D. Nev., 1994]).
Bad Rules and Good Rules
A federal judge in Los Angeles, in United States v. M. Westland Co (C.D. Calif., No. CV 93-4141, 1994), has provided specific examples of both legal and illegal rules. In three fair housing-fair lending cases (¶15,941), the court decided there was no reason to prohibit children from using the billiards room or the shuffleboard facility. The rule applied to both adult-supervised children and unsupervised children. The court did not state whether it would have approved a ban only on unsupervised children.
The landlord had a rule that required adult supervision of all children on the property outside the mobile home. Another rule required an adult to accompany children using the swimming pool. The court simply said the first rule was not justified. The second rule, pertaining to pool use, was rejected since the court could not find a reason to prevent a 17-year-old certified lifeguard from swimming alone. Safety in the pool did not require such a restrictive rule.
The court also struck down the landlord’s rule against children using the Jacuzzi. Health concerns due to prolonged exposure of young children to hot water could justify some restriction, however. The court suggested a warning of the risks, including a rule to require adult supervision or an age cutoff as less restrictive ways to deal with possible health risks.
The court did uphold the landlord’s rule that prevented children who are not toilet trained from using the swimming pool. The court also approved a rule that parents, guardians or any adult in charge of a child are responsible for their control and discipline. In addition, the court approved a rule that required adult supervision of any child under age six when the child rides a bicycle in the community.
A Rule Both Bad and Good
Another Los Angeles federal judge found an apartment rule was both bad and good. In Fair Housing Congress v. Weber (993 F.Supp. 1286 [C.D. Cal., 1997]), the court considered this rule:
“Children will not be allowed to play or run around inside the building area at any time because of disturbance to other tenants or damage to building property. Bikes, carriages, strollers, tricycles, wagons, etc. must be kept inside apartments or in garage area and not left outside.”
The first sentence of this rule was illegal because it applied only to children and not adults. A more effective rule would stop everyone—not just children—from running, playing or engaging in activities that disturb other tenants or damage building property. The court held that the second sentence of this rule was a legal safety measure that applied to everyone. The lesson is not to have rules that affect families with children differently than groups of adults.
The Second Story Rule
Can a landlord decide for safety reasons not to rent upper story apartments to families with young children? No. This type of rule or practice, whether written or not, is called “steering” and is illegal. In Fair Housing Congress v. Weber (993 F.Supp. 1286 [C.D. Cal., 1997]), the court defines “steering” as “not an outright refusal to rent to a person within a class of people protected by the statute; rather it consists of efforts to deprive a protected homeseeker of housing opportunities in certain locations.” In HUD v. Edelstein, (Fair Housing-Fair Lending ¶25,018 [1991]), the court found that “A landlord cannot justify steering families with children away from housing by groundlessly claiming that the housing would be unsafe for resident children. As a general rule, safety judgments are for informed parents to make, not landlords.”
Can a landlord adopt a second story rule to avoid liability for injury? No. Can a landlord require tenants with children to sign a waiver for future accidents? No. Can a landlord tell prospective tenants about the danger to children? No. What can the landlord do? The landlord can warn all tenants or applicants—not just those with children—about potential hazards. If there is a danger to children on a second story, other tenants who lack judgment or mobility may face a similar danger. Installing safety features, such as railings and screens, can minimize the hazard. Insurance can protect against future liability for injuries.
Exceptions to Rules
Normally, apartment rules should be applied consistently and fairly to all. However, a landlord must change or make reasonable exceptions to rules and policies when necessary to allow a disabled person to live and use the apartment and other facilities (42 U.S.C. § 3604[f]). Wait for a request from the tenant. The landlord should know of a tenant’s disability if the tenant tells him about it. However, a landlord may not ask a tenant or new applicant whether the person is disabled, what kind of disability he or she has, or the severity of the disability (24 CFR § 100.202 [c], California Government Code § 12955 [b]).
A landlord may not ask whether a handicapped applicant can live without assistance or requires treatment or medication (Cason v. Rochester Housing Authority, 748 F. Supp. 1002 [WDNY, 1990]). A landlord may not assume that a person is handicapped even if she/he is in a wheelchair. Nor may the landlord assume the person is not handicapped although he/she appears to be functioning normally. When a tenant does ask for a change or exception to a rule because of a disability, the landlord may request documentation or invite the tenant to engage in a “dialogue” (Jankowski Lee & Associates v. Cisneros 91 F.3d 891 [7 Cir., 1996]). If the request for an accommodation due to a disability seems necessary and reasonable, approve it. If in doubt, seek legal advice.
Fair Housing Compliance
Apartment rules can produce fair housing litigation by themselves. Apartment rules that apply only to children are illegal statements that express an unlawful preference (42 U.S.C. § 3604[c]). The rules can also have a discriminatory impact, even without any intention by the landlord to discriminate. More often, however, the rules come into question during the investigation of another fair housing problem. Agencies investigating fair housing complaints examine a landlord’s actions in order to show a pattern of discrimination. One way they do this is to look at apartment rules.
A review of apartment rules is one part of a total program of fair-housing compliance. Employees must be trained to recognize fair-housing situations. Advertising materials should never express or even imply a preference for one group over another, unless an exemption from the fair housing laws applies. Fair housing posters in rental offices are a good way to show support for the law. Any complaint from tenants or applicants that suggests unequal treatment of protected groups must be taken seriously. A landlord should respond promptly, fairly and with concern for fair-housing issues.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. Martin S. Snitow is an attorney experienced in many areas of business and real estate law. He has been defending landlords in fair housing cases since 1985. He can be reached at 408-985-7575. His fair housing articles are available online. © Copyright 2002.