No children

A broker has a new listing for a condominium unit. The condominium declaration has the following provision: “Age Restriction: Permanent occupancy of residential units shall be limited to adults and children not less than twelve (12) years of age.” The broker understands that this provision of the declaration is a violation of Fair Housing Law; can the broker market this property to a family with children? 

The 1988 Fair Housing Amendments Act created new protected classes, which have the right to sue persons who commit housing discrimination. Familial status was among those classes. Similar protections are provided in Wis. Stat. § 106.50, Wisconsin’s open housing law, which prohibits discrimination in housing based on family status. Although one might initially assume that this is discrimination based on age, it appears to be discrimination based on family status. Under Fair Housing Law, age discrimination applies only with respect to persons at least 18 years of age. A declaration or other document provision prohibiting occupancy by minor children is legally unenforceable. If the association attempts to discourage or prohibit a family with children from occupying, significant legal liability could result. 

The broker may refer the condominium association to legal counsel to review the condominium documents. The condominium association may consider having legal counsel review and amend the governing documents to comply with current federal and state law including fair housing standards. For further discussion, see pages 5-7 of the Legal Update 98.03, “Thirty Years after the Federal Fair Housing Act,” at www.wra.org/LU9803.

Housing for older persons

The broker was asked to list a condominium with bylaws and a declaration that states “no children,” and the seller wants this information included in the marketing. What if this were a condominium for people aged 55 and older? 

Under the federal and state statutes, it is unlawful to refuse housing to any family with children under the age of 18, including women who are pregnant, unless the housing project meets the definition of housing for older persons. There are three categories under this definition:

• Housing that is provided under state and federal programs specifically for the purpose of accommodating elderly persons.
• 62-and-over housing: Housing that is “intended for, and solely occupied by persons 62 years of age or older.” No conditions are attached as long as all residents are of this age. 
• 55-and-over housing: At least 80 percent of units must be occupied by one person in each unit who has attained the age of 55, and policies are published and procedures are adhered to that demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older. For additional guidance under federal law, see the questions and answers at www.hud.gov/offices/fheo/library/hopa95.pdf. 

The broker may refer the condominium association to legal counsel to review the condominium documents to assure the association properly qualifies as housing for older persons. 

For further discussion, see pages 6-7 of the Legal Update 98.03, “Thirty Years after the Federal Fair Housing Act,” at www.wra.org/LU9803 and the “Best of the Legal Hotline: April is Fair Housing Month” in the April 2010 edition of the Wisconsin Real Estate Magazine at www.wra.org/WREM/Apr10/FairHousingMonth. 

Wisconsin 55-and-over

A condominium is listed and is designated 55 + with no “regular tenant” below the age of 14. The seller told the broker reviewing the documents that no more than five units in the complex can be sold to a person younger than 55. The seller asked that the broker advertise this as a “55 +” building. If the broker advertises as a 55 + building, is it discrimination because no one under 14 can live there? The two policies seem to be at odds. 

Under Wisconsin law, the only time a limitation as to age may be asserted is if the condominium is housing for persons 55 and older. The Wisconsin “55 or over” exemption is found in Wis. Stat. § 106.50(5m)(a)(1)(a) at docs.legis.wisconsin.gov/statutes/statutes/106.pdf. The exemption section states that nothing “prohibits discrimination based on age or family status with respect to housing for older persons.” This language permits the condominium to discriminate based on age if all of the exemption requirements are met. 

For the over-55 exemption, the owner or manager may document compliance by maintaining records containing written verification of the ages of the occupants of the housing. An owner or agent may require information concerning the age of any person who seeks to buy or rent housing for persons 55 years or older, for purposes of verifying compliance with the exemption.

Advertising 55-and-over housing

Can the broker advertise that a property is 55-and-over? 

The law also provides protection for real estate licensees and other persons who rely upon representations that a particular property qualifies for the “55-and-over” exemption. A person may not be held personally liable for monetary damages for discrimination in violation of Fair Housing Law if the person reasonably relied, in good faith, on the application of the 55-an-over exemption. A person may show reasonable reliance, in good faith, if the person can show that:

1. He or she has no actual knowledge that the housing is not or will not be eligible for the exemption.
2. The owner of the housing has stated formally, in writing, that the housing complies with the requirements for the exemption.

Thus brokers working with housing projects intended for persons 55 years or older may be well advised to request a written report or letter from the owner stating that the housing project complies with all legal requirements for the 55-and-over exemption under Wisconsin Fair Housing Law. The broker would comply with MLS rules in identifying the property as 55-and-over. In advertisements, the broker could arguably omit the information that the unit is 55-and-over given the unit could be sold to a person younger than 55 and not risk the project’s 80 percent occupancy requirements. The broker may consult with legal counsel with specific advertising questions. 

Pet policies and support animals

The agent has a rental property, and the policy does not allow pets. If a person looking to rent states that the pet(s) are for their disabled child, does the landlord have to allow them? The potential tenant is claiming that a small dog and a cat are for this child, but the agent is hesitant to believe that these would be considered service animals. Do these types of animals need to be registered somewhere, or is the agent to just believe that they are in fact service animals? 

The federal Fair Housing Act protects the right of people with disabilities to keep emotional support animals, even when a landlord’s policy explicitly prohibits pets. The law generally requires the owner or property manager to make an exception to the no-pet policy as a reasonable accommodation as long as the accommodation does not constitute an undue financial or administrative burden for the landlord or fundamentally alter the nature of the housing. A reasonable accommodation is a change in rules, policies, practices or services so that a person with a disability will have an equal opportunity to use and enjoy a dwelling unit or common space.
Fair housing laws protect persons with disabilities. A person is considered to have a disability if the person:

• Has a physical or mental disability – including hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS-Related Complex, and mental retardation, that substantially limits one or more major life activities.
• Has a record of such a disability.
• Is regarded as having such a disability.

If a prospective tenant needs a support animal, he or she should request a reasonable accommodation, preferably in writing, from the owner. The request should state the disability if that is not readily apparent and indicate a relationship between his or her ability to function and the assistance of the animal. In addition, the tenant should include a letter or prescription from an appropriate professional, such as a therapist or physician, verifying the need for the support animal. The prospective tenant need not disclose the details of the disability nor provide a detailed medical history. Federal law does not include any specific requirements for registration or credentials for the animals involved.

For details about making reasonable accommodations, see the Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations under the Fair Housing Act, online at www.justice.gov/crt/about/hce/joint_statement_ra.pdf.   

Support and service animals that assist persons with disabilities are considered to be auxiliary aids and generally are exempt from an owner’s pet restrictions, pet deposits and extra pet rent. Service animals include guide dogs for persons with vision impairments, hearing dogs for people with hearing impairments, and emotional assistance animals for persons with chronic mental illness. See “Dealing with Pets in Rental Properties: Planning and Documentation Help Protect Property Managers” in the March 2006 edition of the Wisconsin Real Estate Magazine online at www.wra.org/News/WREM/2006/March/Dealing_with_Pets_in_Rental_Properties. 

The broker should proceed carefully because the broker cannot and does not want to make any representations about the legal rights of the potential tenant or landlord. The broker/landlord may consult with legal counsel to discuss the landlord’s conduct and legal rights relating to service animals and support animals in rental properties.

ADA and condominium associations

Does the ADA apply to a condo association? If a potential buyer or tenant has a service animal, must the association make an accommodation for the animal?
While the search for an accessible home generally focuses on the home or dwelling unit, the ADA also plays a role for those who seek rental housing or housing in a condominium or homeowner association setting because the ADA applies to the accessibility of common-area features. The purpose of the ADA is to assure equal access and services to disabled individuals. The ADA makes it unlawful to discriminate against people with disabilities. Title III of the Act prohibits entities that own, lease, lease to or operate a place of public accommodation from discriminating against persons with disabilities.

The Department of Justice (DOJ) has amended its regulation implementing Title III of the ADA, which applies to public accommodations (private business) and commercial facilities. The ADA requires the DOJ to publish ADA design standards that are consistent with the guidelines published by the U.S. Architectural and Transportation Barriers Compliance Board (Access Board). Therefore, the Title III rule adopts new Standards for Accessible Design that are consistent with the ADA/ABA Accessibility Guidelines developed by the Access Board. The final rule also amends the existing Title III regulation to make it consistent with current policies and published guidance and to reflect the department’s experience since the regulation was first published in 1991. These revisions took effect on March 15, 2011.

The following are some of the relevant highlights of the changes made in the updated ADA rules.

• Service animals: The rule defines a “service animal” as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. The rule states that other animals, whether wild or domestic, do not qualify as service animals. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, are not service animals for the purposes of the ADA. The final rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA. The rule permits the use of trained miniature horses as alternatives to dogs, subject to certain limitations. To allow flexibility in situations where using a horse would not be appropriate, the final rule does not include miniature horses in the definition of a service animal.
• Timeshares, condominium hotels, and other places of lodging: The rule provides that timeshare and condominium properties that operate like hotels are subject to Title III, providing guidance about the factors that must be present for a facility that is not an inn, motel or hotel to qualify as a place of lodging. The final rule limits obligations for units that are not owned or substantially controlled by the public accommodation that operates the place of lodging. Such units are not subject to reservation requirements relating to the “holding back” of accessible units. They are also not subject to barrier removal and alterations requirements if the physical features of the guest room interiors are controlled by their individual owners rather than by a third-party operator.

Additional information may be found in the November 2010 “Growing Market for Accessible Housing” Legal Update at www.wra.org/LU1011. 

Tracy Rucka is Director of Professional Standards and Practices for the WRA.