When Occupancy Limits Become Discriminatory

by | Aug 4, 2014 | Rental Property Management Tips

A number of cases have arisen in recent months where landlords have been sued for discrimination over evicting or rejecting pregnant tenants.

Landlords stand to lose tens of thousands of dollars to fines if they discriminate, and that warrants a look at when occupancy limitations may be illegal.

Landlords who reject tenants with children may be violating the Fair Housing Act. In addition, landlords may be subject to state and local rules that prohibit discrimination against families, including single-parent families and pregnant women.

tenant screeningIn some of the recent cases, landlords have been expressly discriminatory, like advertising “no kids” or steering families away from certain units. But more often, it’s the landlord’s occupancy limitations that are the problem.

Landlords must be very careful when rejecting tenants with children over occupancy limits because it is very easy to cross the line. HUD has broadened its guidelines regarding standard occupancy, so landlords cannot rest on the common two person per bedroom rule. What’s more, HUD has required more creativity regarding what is considered a “bedroom” for purposes of the Fair Housing Act.

A stricter analysis has to go into deciding whether a family is too big for the space. Factors may include the overall size and layout of the rental property, and the age of the children. Local fire, building safety and zoning ordinances can serve as a guideline, where the landlord’s rules should be no more restrictive. But short of these legal limits, rejecting a pregnant woman or family with infants and small children over sleeping arrangements may result in a discrimination investigation. Keep documentation and be prepared to explain your justification for turning away a family.

Similar property management policies also can trigger a discrimination complaint. Examples include curfews on children, restricted access, and requirements of supervision or other parenting rules. Words in rental ads that discourage families, like “young professionals” or “couples” also are problematic.

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Disclaimer: The information provided in this post in not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.

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