With the 50th anniversary of the Fair Housing Act (FHA) upon us, the WRA Legal Hotline reviews some of the ways the FHA impacts daily real estate practice.
Occupancy standards
There are two adults and six minor children seeking to occupy a three-bedroom, one-bath home. What are the fair housing rules related to occupancy?
Both federal and state law provide that it is not discrimination based on family status if property owners set occupancy standards in compliance with reasonable federal, state or local regulations/ordinances relating to the maximum number of occupants permitted to occupy a housing unit, and these standards are fair and reasonable. Occupancy standards may be created to meet legitimate reasons such as health and safety, overcrowding or capacity of utilities or infrastructure. It is best when such standards are stated in writing along with other screening criteria and provided to tenant prospects in advance.
The U.S. Department of Housing and Urban Development (HUD) in 1998 issued guidance setting a general standard of two persons per bedroom to be used in enforcing the federal fair housing law, but this is not an ironclad, automatic standard. Such an occupancy policy is generally reasonable under the Fair Housing Act, but such a policy might sometimes unfairly exclude families with children and violate the Fair Housing Act.
This is illustrated in a recent $15,000 HUD settlement with a Connecticut management company. The manager refused to renew the family’s longstanding lease because five people were too many to live in their 1,464 square-foot, two-bedroom apartment with a separate den/study. The company had a policy restricting occupancy to two persons per bedroom regardless of size. This $15,000 settlement agreement puts housing providers on notice that they must always consider other factors such as the size of the rooms and the overall apartment when setting occupancy standards and not automatically rely on the two-persons-per-bedroom standard without further consideration. HUD’s guidance requires consideration of the size of bedrooms and the overall unit, the age of the children, the unit configuration, other physical limitations of the housing, state and local law, and other relevant factors.
Wis. Admin. Code § SPS 379.09 sets the minimum size of sleeping rooms for existing multifamily housing with three or more dwelling units. This section requires sleeping areas to provide a minimum of 400 cubic feet for each occupant over 12 years of age and 200 cubic feet for each occupant who is 12 years of age or under. See docs.legis.wisconsin.gov/code/admin_code/sps/safety_and_buildings_and_environment/375_379/379/09.
HUD’s occupancy policy is available at www.hud.gov/sites/documents/DOC_35681.PDF. The Connecticut settlement is described at archives.hud.gov/news/2013/pr13-124.cfm. See “The Best of the Legal Hotline: Fair Housing Issues,” in the April 2014 Wisconsin Real Estate Magazine at www.wra.org/WREM/Apr14/Hotline and Tristan’s Landlord-Tenant Law Blog: “Occupancy Standards … Not As Simple As ‘2 Persons Per Bedroom’” at petriepettit.com/blog/landlord-tenant/occupancy-standards-not-as-simple-as-2-persons-per-bedroom.
Advertising
The agent has a listing, and the seller wants to use the following language in the description on the MLS listing: “Historic home in family-friendly Greenbush neighborhood. Walk to Vilas Park, Zoo, Monroe Street (Trader Joe's, Barriques, library), UW Campus, hospitals. The Greenbush neighborhood offers a mix of young families, long time homeowners, and rentals.” The agent is concerned about fair housing and the use of “family-friendly” and more so “young families.” Can the agent add this description into the MLS?
HUD’s fair housing advertising guidelines indicate that advertisements may not state an explicit preference, limitation or discrimination based on familial status. Advertisements may not contain limitations on the number or ages of children, or state a preference for adults, couples or singles. Advertisements describing the properties, such as “two bedroom,” “cozy, family room”; services and facilities, such as “no bicycles allowed”; or neighborhoods, like “quiet streets,” are not facially discriminatory and do not violate the act.
While Wisconsin has not prohibited the use of specific phrases in advertisements, some states have done so. Because the use of the term “family-friendly” may imply a preference for those who have children, the licensee may reconsider the use of that term in the advertisement. It would be far better to describe additional features of the neighborhood than use a label that may have different meanings or implications.
NAR has provided guidance regarding words and phrases it believes do not discriminate, as well as words and phrases that are questionable and may discriminate. One term that many REALTORS® believe they should always avoid is “family.” The term “family” would seem to have a fluid meaning, depending upon context, the market area and other circumstances. Families may be composed of any combination of individuals in various relationships, so the word should not always be automatically off limits. REALTORS® should not say that “families with children” aren’t welcome to rent or buy, but it is acceptable to market features such as “family” rooms. REALTORS® clearly should make sure they don’t use the term in a manner that suggests that certain buyers may not be welcome or that certain groups are preferred.
For further discussion, see the April 2007 Legal Update, “Avoiding Discrimination in Advertising and Racial Steering,” online at www.wra.org/LU0704.
Safe housing concerns
Two tenants’ names are listed on the lease: the boyfriend and the girlfriend. She wants him removed from the lease and out of the property; he, however, wants to reconcile. Each of the tenants has called the police, and each has been arrested for a domestic dispute. Can the landlord remove one of the two tenants from the lease?
Generally tenants have joint and severable liability for a lease. An individual tenant or the landlord cannot unilaterally change the contract without the consent of the remaining parties. However, in Wis. Stat. §§ 704.16 and 704.44, Wisconsin adopted the Safe Housing Act, which sets forth procedures for either a landlord or tenant to terminate tenancy if there is a tenant who is the victim of domestic abuse, sexual assault or stalking. When there is imminent threat of serious physical harm to the tenant or a child of the tenant and the tenant provides the landlord with proper notice and documentation, the tenant may terminate the tenancy.
Likewise, a landlord can terminate the tenancy of an offending tenant if the offending tenant fits the following two parameters:
- Commits one or more acts, including verbal threats, that cause another tenant or a child of another tenant in the rental unit or apartment complex to face an imminent threat of serious physical harm from the offending tenant if the offending tenant remains on the premises.
- Is the named offender in an injunction — which may or may not be based on sexual assault or stalking — protecting another tenant or another tenant’s child; prison release condition; or criminal complaint alleging sexual assault, stalking or domestic abuse against a tenant or a tenant’s child.
The landlord must give the offending tenant written notice requiring the offending tenant to vacate on or before a date that is at least five days after the notice is given.
As an alternative, the landlord and tenants may agree to amend the lease to remove one tenant or end the lease term. Another consideration may be whether one or both tenants have breached the lease. If so, the landlord may potentially be able to terminate the lease and either enter into a different lease or evict the tenants. These issues and the applicability of the statutes may be discussed with the landlord’s attorney.
See the factsheet from the Wisconsin Coalition Against Sexual Assault at www.wcasa.org/file_open.php?id=181.
No children and not 55 and over
The broker was asked to list a condominium with bylaws and a declaration that states "No Children." The seller wants this information included in the marketing. These are not condominiums for people age 55 and older. Isn’t this a fair housing violation comparable to religious discrimination or racial discrimination?
The 1988 Fair Housing Amendments Act established familial status as a protected class. Similar protections are provided in Wis. Stat. § 106.50, Wisconsin’s open housing law, which prohibits discrimination in housing based upon family status.
Although one might initially assume that this is discrimination based on age, it appears to be discrimination based upon family status. Under fair housing laws, 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.
Under the federal and state statutes, it is unlawful to refuse housing to any family with children under the age of 18 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, see the questions and answers at www.hud.gov/sites/documents/DOC_7769.PDF.
The broker may suggest the condominium association confer with legal counsel who may review the condominium documents to assure the association properly qualifies as housing for older persons, if that is the intent, and/or help amend the governing documents to comply with the fair housing law.
For further discussion, see the “The Best of the Legal Hotline: April Is Fair Housing Month” in the April 2010 edition of Wisconsin Real Estate Magazine at www.wra.org/WREM/Apr10/FairHousingMonth. The Wisconsin “55 or over” exemption is found in Wis. Stat. §106.50(5m)(a)1 at https://docs.legis.wisconsin.gov/statutes/statutes/106/III/50.
HUD’s comprehensive senior housing resources are available at www.hud.gov/program_offices/fair_housing_equal_opp/seniors.
Reasonable modifications
The tenant lives in a main-level apartment and had surgery such that she will be on crutches for several months. She is demanding that the landlord put in a special railing for her to hang on to in order to get in and out of her apartment. Is installing a railing something that a landlord is required to do?
Both federal law and Wis. Stat. § 106.50(2r) prohibit discrimination against persons with disabilities and enable a person with disabilities to make reasonable modifications to a property that the person occupies if the modifications are necessary for the person with disabilities to have full enjoyment of the housing.
A reasonable modification is a structural modification that is usually made at the resident’s expense. Examples of a reasonable modification would include allowing a person with a disability to install a ramp into a building, lower the entry threshold of a unit or install grab bars in a bathroom.
A landlord may require a restoration agreement under Wis. Stat. § 106.50(2r)(b)3 but may not increase any customary security deposit.
See the Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Modifications under the Fair Housing Act at www.hud.gov/sites/documents/DOC_7502.PDF and Wis. Stat. § 106.50(2r)(b)3 at docs.legis.wisconsin.gov/statutes/statutes/106/III/50 for more information.
Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA. Tracy Rucka is Director of Professional Standards and Practices for the WRA.