QUESTION: Is it discriminatory to offer "Seniors Only" a discount on rent?
A rent discount for seniors likely would violate the Fair Housing Act's prohibition against discrimination on the basis of familial status. Familial status simply means that the tenants include at least one person under age 18 living with a parent or guardian or their designee. It also includes pregnant women and people in the process of obtaining custody of a child. Under both federal law and California law, it is illegal to discriminate in rental terms and conditions on the basis of familial status.
California's Unruh Act specifically prohibits discrimination on the basis of age. A "Senior's Only" discount would clearly be illegal in California.
QUESTION: Can you limit the number of adults in a unit but not the number of children?
This is very similar to the last question. Under federal law you should be able to set an occupancy policy which is more favorable to families with children than to groups of adults without children. If you are concerned with parking problems, for example, you might do this to limit the number of cars. Although 16 and 17 year olds can have driving licenses, most children do not have their own cars.
However, California's prohibition against housing discrimination based on age makes different limits for adults and for children illegal.
QUESTION: May we require a disabled resident to provide proof that a pet would benefit their specific disability before allowing a pet?
How could a tenant prove that? Except for guide dogs for the blind, there is little in the way of recognized certification for helper animals. You could probably require documentation that the tenant had a disability. You could request some evidence, such as a note from a health care professional, that the animal would benefit the person's disability. Then the question would be: is allowing the animal a reasonable accommodation for the person's disability? One consideration might be whether the animal can be relied on not to harm others nor to damage the rental unit.
There is still much debate and litigation over what is considered a disability. Be very careful in evaluating a tenant's request for accommodation. Except in the clearest situations, you may need legal advice about your particular situation.
QUESTION: If I limit occupancy in a studio to 1 person, am I violating fair housing laws?
Some cases have held that limiting a one-bedroom apartment to one person violates the fair housing laws. I have not seen any case dealing with a one person occupancy limit for a studio. However the same legal analysis applies.
First, does the limit adversely affect occupancy because of familial status? Here the answer is clear. Since "familial status" requires both a child under age 18 and a parent or guardian or designee, a unit with a one person limit can never be rented to a family.
Second, is there a compelling business necessity for the occupancy limit? Here the courts rarely if ever accept the opinion of the owner alone, no matter how experienced he is in renting units. Landlords have prevailed by having an expert show that increasing the occupancy would cause serious and provable harm.
Finally, is the occupancy policy the least restrictive method of achieving the compelling business necessity? Or is there something else you could do which would solve the problem without requiring the occupancy limit? The law and the court decisions mostly do not talk about the cost of the other method to achieve the compelling business necessity. Is another method less restrictive if the landlord would have to rebuild his complex?
There is one federal case from Nevada which approved an occupancy limit where the alternative was to install a new hot water system at a cost of over $1 million. A 1995 decision of the Ninth Circuit Court of Appeals severely criticized the U.S. Department of Housing and Urban Development for failing to issue regulations defining reasonable occupancy limits. HUD promised to issue regulations promptly, but three years later has not even published proposed regulations.
If you still want to limit occupancy in your studio, you should obtain specific legal advice.
QUESTION: How do you deal with occupancy standards when a tenant becomes pregnant and the birth of the baby would cause the tenant to violate the standard set for my property?
Very carefully. Pregnant women and people in the process of obtaining custody of a child are also protected from discrimination on the basis of familial status.
First you consider whether you actually have a compelling business necessity for your occupancy policy. Then you investigate whether there is a less restrictive method for achieving that business necessity. Depending on what the necessity is and what alternatives there are to your policy, you may or may not have to evict the tenant. If you don't have to, you should probably rewrite your policy to reflect what you actually are doing.
QUESTION: Can you adjust rents/deposits for numbers of tenants (over a certain limit) to account for additional utility usage, wear and tear, etc.?
Normally a tenant is not responsible for ordinary wear and tear of the premises. Also, California law limits the amount of rental deposits. Even if you are not discriminating, you could not require a deposit above the legal maximum.
Can you prove that the number of tenants will alway result in greater costs? Why would you only have the adjustments "over a certain limit?" Wouldn't two tenants use more hot water than one? Or three tenants more than two?
Families with children (who will always be more than one person) will pay more under your plan than one tenant in an apartment. Conceivably a family might not use more utility services or cause more damage than a smaller group of adults. Your policy could have a disparate impact on the basis of familial status.
You probably could individually meter the apartments for utility service, but the cost can be very high. You could not do this only for families with children.
QUESTION: Can a landlord refuse to allow a family day care home in their apartment complex?
Not in California.
QUESTION: Can a landlord limit the number of children allowed in a family day care home on their property?
No, but the State of California can and does. Any landlord rules which are more restrictive are not permitted.
QUESTION: What if a potential resident asks: "What is the make-up of the complex population"?
"We have a very nice group of people living here." A landlord may not steer tenants by suggesting or implying that one area is better for a given group than another area is. A landlord may not help a tenant steer himself or herself by providing information, even when requested by the tenant, that suggests or implies that the entire complex or any part of it is for one group more than for another.
Copyright © 1995, 2000 Martin S. Snitow Law Corporation. All rights reserved.
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