Apartment rules, tenant rules, community rules, pool rules, clubhouse rules or parking rules. Whatever you call them, they can promote peace and quiet, safety and harmonious relations. These rules enhance the rental property's appeal, reduce management problems and maintenance costs and give fair warning to tenants of what 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.
Apartment rules can discriminate against families with children for the most noble of reasons. Our society places a high value on protecting children from danger. Often a landlord will impose rules designed to safeguard children, and wind up violating fair housing laws.
Some apartment rules can seem 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 re-examine it. But sometimes you will not have this signal. The tenant is not required to complain about a rule before filing a lawsuit.
Discrimination against families with children can often be hard for a landlord to recognize. The landlord's belief in fair housing and intent not to discriminate will not protect against a lawsuit. Courts look at the impact of apartment rules and other policies to see if they restrict families with children more than others.
To win a fair housing claim, the tenant or rental applicant only has to show that a rule treats children, and thus families with children, differently and less favorably than households having only adults. Once a plaintiff proves the rule affects children more than adults, it is up to the landlord to show a non-discriminatory purpose for the rule. Some courts require proof 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 allowing larger family groups with children will overburden the hot water system will not succeed; but an engineer's report explaining why a new system costing $1.63 million is needed if the number of occupants increases could justify the landlord's position. United States v. Weiss 847 F.Supp. 819 (D. Nev., 1994).
A federal judge in Los Angeles gave specific examples of rules which are or are not illegal.United States v. M. Westland Co (C.D. Calif., No. CV 93-4141, 1994) 3 Fair Housing-Fair Lending Cases ¶ 15,941 decided there was no reason to prohibit children from using the billiards room or the shuffleboard facility. The rule applied both to children supervised by an adult and to unsupervised children. The court did not say if it would have approved a ban only on unsupervised children.
The landlord required that an adult always supervise all children who are outside the mobile home. Another rule said children using the swimming pool must be accompanied by an adult. The court simply said the first rule was not justified. The pool rule was rejected, since the court saw no reason why a 17 year old certified lifeguard could not swim alone. Safety in the pool did not require so restrictive a rule.
The court also struck down the landlord's rule against children using the Jacuzzi. There the court agreed that health concerns about prolonged exposure of young children to hot water could justify some restriction. The court suggested a warning of the risks, a rule requiring adult supervision or an age cut-off would be less restrictive ways to deal with the health problem.
The court did uphold the landlord's rule against children who are not toilet trained using the swimming pool. The court approved a rule that parents, guardians or any adult in charge of a child are responsible for control and discipline of the child. The court also approved a rule requiring adult supervision of any child under age six when the child is riding a bicycle in the community.
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 better rule would stop everyone, not just children, from running, playing or engaging in other 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 to have no rules that affect families with children differently than groups of adults.
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. Fair Housing Congress v. Weber, supra. "Steering" is "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." HUD v. Edelstein, Fair Housing-Fair Lending ¶ 25,018 (1991). "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.
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. 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 how severe the disability is. 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 they are in a wheelchair; nor that they are not disabled even if they appear to be able to function normally. But when a tenant asks for a change or exception to a rule because of disability, a 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 because of disability seems necessary and reasonable, approve it. If in doubt, seek legal advice.
Apartment rules can produce fair housing litigation by themselves. Apartment rules that apply only to children are illegal statements which 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 look to see if the landlord has shown a pattern of discrimination. One way they do this is to look at apartment rules.
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.
Copyright 1995, 2002 Martin S. Snitow Law Corporation. All rights reserved.
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