Did you know that familial status discrimination was the second most common fair housing complaint in 2021? We are joined by Gwen Volk to break down this sometimes confusing protected category to help you and your property work towards better discrimination protection.
Estimated reading time: 4 minutes
What is familial status, and who does it protect?
It is important to understand what was happening when familial status was added as a protected category under the Fair Housing Act to interpret what it is and who it protects. In 1988 interest rates were very high. People interested in buying a home were looking at rates of 12-14%, making ownership very difficult and driving many younger families into the rental market.
In addition, landlords did not want to rent to families and were actually running ads that stated “no children” or outrightly rejecting applications from families that had children. It became very apparent that familial status needed to become a protected category. It was added and afforded protection to families that had individuals living with them under the age of 18. These could be biological, foster, or adopted children. The class also included and protected pregnant women.
Are there exceptions where familial status doesn’t apply?
There is a very confusing exception, primarily if you work in the affordable housing sector. This exception does not apply to deeply subsidized housing or HUD properties. The exception is known as Housing for Older Persons Act (HOPA). It is a federal regulation that states that there are a specific set of circumstances in which a property can refuse to rent to families with children. This regulation was meant to protect those that wished to live in retirement housing. The regulation only applies to conventional housing or tax credit housing that does not have federal funding. There are two different criteria that need to be met for a property to claim the exemption.
- Everyone on the property has to be 62 or older, or
- 80% of the property’s units have a head of household or at least one individual that is 55 or older. The remaining 20% can have younger people but no children.
In addition, the second criteria would also need to advertise themselves as a retirement community and have the community rules and policies clearly stated in the lease agreement. Only then could a property refuse to rent to a family with children.
A point to consider is that there are some HUD properties that are called “elderly properties.” However, because these are federally funded, they cannot refuse a child to be in the unit if the household otherwise qualifies.
The three most common “accidental” familial status violations
At 25%, familial status violations are the second most common fair housing complaint. This may be partly due to the sometimes confusing interpretation of the law. Regardless, property owners and staff need to be aware of the many different ways a discrimination case could be brought. One of the more common ones we come across that can be very tricky pertains to safety issues on the property. For example, rules that are posted around the community swimming pool. Stating that a child may only swim if over the age of 16 or accompanied by a parent or guardian could be considered discriminatory. Instead, the rules should state that only people who know how to swim can use the pool.
The second most common “accidental” familial status violation is when determining occupancy amounts. We are all aware of the two-person per bedroom occupancy standard, but again there are other things that need to be considered. How big are the bedrooms, and what is the total square footage of the unit? Are there any additional rooms that could be considered or used as bedrooms? Also, things like building and fire codes should be considered.
A third more common violation includes steering. You may feel that you have the prospect’s best interests at heart, but you need to be careful. Saying things like “I am sorry, but we don’t have many kids here” or “we have a lot of shift workers who need quiet during the day” is discriminatory. A better practice is to let the prospect ask the questions and carefully document what was stated during the tour.
Familial status can be a complex category to understand and navigate the laws pertaining to it. Every property needs access to regular and up-to-date training to aid in ongoing compliance.
Jonathan (00:12): Hello everyone. And welcome to the Fair Housing Insiders. This is episode 49 and I am Jonathan Saar, your host today, and with us today is Gwen Volk. And we are looking forward to introducing her in a moment and talking about familial status. But before we get going, just a couple of housekeeping items, make sure that you're subscribed to our YouTube channel and to our newsletters. So you never miss out on all the fair housing bonuses and extras that we provide. Follow us on Instagram at Fair Housing Institute. So all this bonus content if you make yourself available and sign up for those different social platforms that we're involved in. So it's my pleasure to introduce Gwen Volk, she's president and CEO of Gwen Volkin Focus Incorporated. And since 1983, she has assisted developers, owners, agents, and onsite staff in navigating the complexities and challenges of the many programs that provide housing opportunities for low and moderate income families. So, first of all, Gwen welcome to the show and thank you for all of your years of service to the property management industry. It's nice to have you on the show today.
Gwen (01:24): Well, thank you very much, Jonathan.
Jonathan (01:25): Yeah. So today we're gonna be talking about familial status and there's a couple of topics that we're gonna be diving into and looking forward to your insight and what you've seen, what you've experienced, for instance, who does it protect? Where does it not apply? What are some situations that we want to avoid complaints and so on? So let's dive right in first question.
Gwen (01:49): Mm-Hmm
Jonathan (01:50): What is familial status and who does it protect?
Gwen (01:55): Well, you know, when I talk about familial status or any protected class, I always like to give a little historical perspective. I think it's really important to know why something was added as a protected class, because it's easier then to implement the rules and not be wondering, well, I don't know why we're having to do this. So when it comes to familial status, it was added as a protected class under the Fair Housing Act in 1988. And the context was, and since I, you know, I've been around a long time, so I remember very well, what was going on in 1988, what was happening was that interest rates were extremely high, 12 to 14% to buy a home. And if you have any involvement with home ownership, you know, that your interest rate is what makes your payment higher and higher. And so younger families that had reached the point where typically in the past, they would've gone out and bought a small single family home for themselves, weren't able to do this because of the high interest rate.
Gwen (02:55): So they were virtually forced into the rental market. And what happened when they were forced into the rental market was that landlords really didn't wanna rent to them. And they made that very apparent by you know, just rejecting them because they had kids and, you know, people used to put no kids, no pets and so forth in ads in fact. And so that's when it became apparent that familial status needed to be a protected class under the Fair Housing Act. So it protects just what- it doesn't protect all families. It protects families that have persons living with them that are under the age of 18, i.e. children. And this, these could be their biological children. They could be foster children, they could be children that they have adopted. It could be a situation where they're in the process of adopting a child that isn't actually living with them yet, but will be living with them. It also protects a person who is pregnant and has you know, stated that they are pregnant. And, you know, we, they might, you might have 'em sign some certification to that effect, you know, that they need a certain size of apartment. And so all of those individuals and families are protected.
Jonathan (04:05): Very good. Thank you. That's an awesome in depth explanation. And thank you for the history too. I think that provides a lot of context, especially for all of our new new people coming into the industry. You know, that's that's nice context for them to reflect on. So are there exceptions where familial status doesn't apply?
Gwen (04:26): Well, you know, there is an exception and it's a very confusing exception. You know, I come out of the affordable housing industry and it's particularly confusing to people who are in affordable housing because for the deeply subsidized properties like HUD properties, this exemption doesn't apply. And, but it's very confusing. So the way it works is it's a thing called housing for older persons, and that's capital H for capital O older capital P persons. I say it that way, because it's an actual federal regulation that says there's going to be this specific carve out where you can refuse to rent to children. It's as simple as that. And they did that because of when familial status was added, we have a lot of housing that's considered retirement housing, and, you know, some people, when they get old, I don't really understand this cause I'm pretty old.
Gwen (05:21): They don't wanna live around kids. I've never understood that, but apparently that's a fact of our society. And so they didn't want little kids coming around and peeing in the pool and all that. And therefore they wanted to provide a protection for, you know, people that wanted to be in retirement housing. So it only applies to conventional housing, that's housing that isn't, you know, isn't involved in a government program, market rate housing, it applies to market rate housing. It also applies to tax credit properties that do not have any federal funding on them because tax credits aren't federal funding. So if you have a tax credit that has a section eight contract on it, or a tax credit that has RD it doesn't rule development, it doesn't really apply to those tax credit properties, but anyone that's just a straight tax credit and maybe even a tax credit with home, that's kind of undecided can do this.
Gwen (06:16): Now there's two ways that the federal law says that they can qualify. One is they can say that everybody in the property has to be 62 and older. That's pretty dramatic. And that's one way. And if they, if they do that and they call themselves retirement housing, they can refuse to rent to families with children and they would need to do that in order to keep that status. Then there is the 55 plus, which is really, I think, a more popular one. And the 55 plus is a little more, a little lighter. It, the 55 plus says that if you maintain at least 80% of your occupied units having a head of household or one person, let's just say that's 55 and older, only one person, the rest of them do not have to be. And so that has 80% of all the occupied units and the other 20%, you could have younger people, but you wouldn't have any children in them you can, that is another way that you can qualify, but you have to do some additional things for that.
Gwen (07:16): When you also have to advertise yourself as a retirement community, and you have to have things in your lease, that stipulate that you have these rules. And so if you do all of those things, you can then refuse to rent to children and that's what you would do. So if you had a 70 year old that came in and they had a 14 year old grandson with them, you would refuse to rent them because the grandson doesn't fit with your profile of housing for older persons. I do wanna add that there are properties, HUD properties, that are called elderly properties.
Jonathan (07:51): Mm-Hmm
Gwen (07:51): So that's confusing. They are elderly properties, but they can't refuse to allow a child to be in a unit if the household otherwise qualifies for that unit. And if the unit is large enough to, you know, it's a, that enough room for whatever many people that's gonna be.
Jonathan (08:10): Right. Wow. Thank you so much. That's good. And I think our audience really understood, like, so we got market rate properties, affordable housing, tax credit, you know, unique differences for all of them when it comes to familial status. So thank you so much. That's excellent explanation. Okay. So let's let's spin this a little bit, you know, especially for, even for seasoned people in the industry, it's the reason why we do these sessions, why we have fair housing training. It's always good to get refresher and even more important for new ones who are in the industry, cause you know, people use these videos a lot for training purposes internally. So let's talk about what have you seen as like the three most common accidental familial status violations.
Gwen (08:59): All right. Let me preface this by saying that and I, some of your viewers are probably not aware of this. The number one category of complaints that are actually processed under the fair housing act is for persons with disabilities, that makes up things like about 55%. Then the second one is familial status at around 25%. And race is way down there, like at about 6%, which is interesting. And people usually think it'd be the other way around. So familial status is a very common type of fair housing complaint that actually gets prosecuted. So having said that, I don't know if there are only three common ones, but I'm gonna give you a couple, three that I know of. So one of them would be, and this would be something that you could easily do and you're not really intentionally trying to discriminate.
Gwen (09:53): And that is making rules that apply only to children or only to families with children. And you can't do that. So if you're gonna have a rule, it pretty much has to apply to everyone where it gets tricky is when it gets into things like safety issues. And so you're concerned about the safety of children being at the pool. And so you make some rule that says that children can only be in the pool if they are supervised by a parent or guardian, that's discrimination.
Jonathan (10:27): Wow.
Gwen (10:27): It's discrimination in part because you specified it had to be a parent or guardian. It's also discrimination because what you really should be restricting are people who aren't able to swim and need supervision. So you could just leave the kid thing out of it completely. And you wouldn't be, you know, walking on any dangerous ground at all.
Gwen (10:48): But that's a tricky one. There could be an older child that's perfectly capable of supervising their 10 year old brother in the pool. And they may be, you know, 16 or 17. But by saying it has to be a parent or guardian you've eliminated that or it could be another adult, but those are all reasons why, and those are, that's just one example, curfews, you can't have curfews that are just for children. You know, you can't have rules about areas of the property that can be used that can only be used by adults and so forth. Those are all discriminatory.
Jonathan (11:27): Yeah, no, that's good. I was one of the first things is when you started mentioning about safety, you know, just been traveling and speaking for so many years at that's, what came in my head is like every pool you go to, there's some sort of like list of rules.
Gwen (11:43): mm-hmm
Gwen (11:45): In reference to children and being with an adult and so on. So good reminders of, you know, what we do with our rules for our properties. Right.
Gwen (11:57): And let me just throw this in. Remember also that there are people other than children that shouldn't be in the pool unsupervised either. Some of the elderly should not be at the pool unsupervised depending on their particular mental state or their physical capabilities and the same thing with certain persons with disabilities. So it's really not an issue about children. I mean, there are kids that are two years old that can swim like a fish, you know? Yep. So it's not really about children,
Jonathan (12:21): Right?
Gwen (12:22): You have to focus on what the real concern is. Not the category.
Jonathan (12:27): Exactly. Exactly. Yeah. Very good. Very good. So everyone who's listening. Yeah. Pay attention, double check. What your safety rules look like. And that's interesting to know, Gwen. I honestly did not know that that the familial status was the second highest for what, you know, for fair housing violations and what is being prosecuted,
Gwen (12:48): Those are 2021 statistics.
Jonathan (12:51): Yeah. No, that that's, that is amazing. So pay attention viewers, make sure you double check that you're not violating something by accident there. Okay. our last question-
Gwen (13:02): I thought you wanted two more things.
Jonathan (13:04): I do. I do. Sorry. Yes. Okay.
Gwen (13:06): I've got another one. The next one is and this is really, I feel sorry for people on site when they're owners and management companies don't explain this to them. So everybody has this two person per bedroom occupancy standard because HUD established it as a safe Harbor in 1998, it was recommended by their council in 1991. And then Congress made them actually accept it in 1998. It's not really a regulation, but it's a, it's saying as long as you don't have a standard, that's stricter than two persons per bedroom, you're probably not gonna be discriminating based on familial status. The problem is it's not as simple as that.
Jonathan (13:46): Mm-Hmm,
Gwen (13:46): The entire rule talks about more than just number of persons for bedroom. It says you also have to consider things like how big the bedrooms are. What is this total square footage of the home?
Gwen (13:58): Does it have a den or some other room that has a window, so it has egres and so it could be considered used as a bedroom? I mean, you know, I asked my class one time. I said, what does a room have to have to be able to be a bedroom? And they said a closet
Gwen (14:43): And now you've got six people in that one bedroom. What are you supposed to do? I mean, that is very tricky. HUD has rules about that, about how you're supposed to move them. If you have a larger unit. What if you don't have a larger unit, what are you going to do about that issue? And I always tell people to kind of fall back on like fire codes and things like that, but that's a tricky one. And in certain parts of society, having six people in a one bedroom, it doesn't sound that bad. I mean, you know, over in Russia, that's how they live. They don't have any apartments. They have six people in a one bedroom would be, you know, perfectly common. So again, you have to be careful about that. You can rely on health and safety issues and that sort of thing, and maybe help them try to find something else. But it's a very touchy area.
Jonathan (15:31): Yeah.
Gwen (15:32): You can't put 'em on, you don't wanna put 'em on the street because you know, now what are they gonna do?
Jonathan (15:36): Right, right.
Gwen (15:38): Mm-Hmm
Jonathan (15:38): Very good. That's an awesome second example. So appreciate that. So you got one more for us, right?
Gwen (15:43): Yeah. My third example is and this is a kind of, I always feel bad about this is this is when people are really just trying to be helpful. You know, we have people that are very well intentioned and so somebody comes to their property and they have a bunch of kids and the kids are with them. And it isn't that the property really doesn't wanna rent to children that they just are trying to help the family. And they'll say, well, you know, you might have noticed we don't have a playground. You know, I think you'd be happier in a property that has a playground or you know, we don't have very many kids on our property, or we have a lot of adults here that work at night and they sleep during the day. So we have to have a lot of restrictions for kids. And I do wanna clarify, it's okay to help like that if they ask you. So if somebody comes in and says I would, you know, I see you don't have a playground. I'd really like to be on a property that has a playground. Do you know any properties around here that have playgrounds? Then you can answer that question, but make sure you document exactly what that conversation was that you had.
Jonathan (16:44): Yeah.
Gwen (16:45): So that's, that's the other one of my examples.
Jonathan (16:47): That that's really good. Really good. Yeah. Thank you so much. Mm-Hmm
Gwen (17:30): Mm-Hmm
Jonathan (17:31): All right. So that was a lot of material. So at the end of our shows, what we like to do is just kind of do a quick little kind of game show style format and throw out five fast five questions to you. And let's see if we can, you know, first of all, it's always a challenge for me to be able to say them fairly quickly, cause there's really no short
Gwen (18:00): Mm-Hmm
Gwen (18:00): But let's see if we can get it in 60 seconds and you win one quintillion, quintillion, monopoly dollars or something along that line.
Gwen (18:08): Okay. Or a Bitcoin would be good. Yeah.
Gwen (18:22): Yes. they can, they could indicate that no one should be in the parking lot unless they're parking, but not, they shouldn't be singling out children.
Jonathan (18:30): Very good. A couple with three children, including a newborn is refused a two bedroom because they exceeded the occupancy limit. Is this right?
Gwen (18:40): It isn't. And the reason it isn't is because of the newborn. There are even states that have specific rules about that, that any child under five or something shouldn't even be counted in the occupancy standard. So you better, you have to know what you're doing with that one.
Jonathan (18:56): Very good.
Gwen (18:57): Mm-Hmm
Gwen (18:58): Okay. The president of the condominium association submits a written request that the owner refuse applications from families with children, since the project now qualifies as housing for older persons. How should the owner respond?
Gwen (19:12): Well, it would sort of look like that, but the qualifying as a housing for older persons has all these different hoops that you have to jump through. So they couldn't just decide that. It's possible that they might be able to implement some, you know, of those rules. But they'd have, it's gotta take a plan and figure out how it's gonna work so that they're not, you know, they're not just deciding, oh, we're all old now. So let's just stop renting to kids.
Jonathan (19:39): Very good. Okay. Thank you. A new manager allows an income qualified 71 year old and her minor grandson to move into a HUD 202-8 property restricted to those 62 or over. Was that the right decision?
Gwen (19:54): It was as long as, you know, the unit was you know, a one bedroom, which two persons per bedroom, they can fit in there. And it's perfectly the right thing to do. It's an elderly property, but you cannot restrict a family that is otherwise qualified from occupying a HUD property with a child.
Jonathan (20:13): Very good. Thank you. So would a manager be within his rights to implement a rule that children under 10 must be supervised by a parent or guardian when using the pool?
Gwen (20:24): Well, I think we already discussed that and that would be no.
Jonathan (20:27): Yeah. Absolutely.
Gwen (20:27): And that's not the right, right way to do the rule.
Jonathan (20:31): Exactly. Very good. All right. Well, we didn't do it in a minute, but we did it in just over two. So that's still absolutely amazing. Okay. For the in depth conversation that we've had today. So thank you so much, Gwen, for being on our show. We've been looking forward to this interview, looking forward to showcasing your experience in the affordable housing and talking about familial status today. Is it okay for our audience to reach out and connect with you in any way?
Gwen (20:57): Sure, absolutely. I have a website and it's www.gwenvolk.com and they can contact me easily through my website.
Jonathan (21:08): Very good. Yeah. We'll make sure that that website is included in the show notes on YouTube and on the Fair Housing Institute website also. So thank you so much again for being, we look forward to having you on a future episode. Thank you everyone for tuning to our show today. And if you have found this valuable, please share it with your network. We appreciate your support, your thumbs up. And we also appreciate your questions and comments. So take some time if you have any questions about this episode or any of our other episodes, please share that with us on future episodes. We consider all those community questions and that will be coming up in a future recording. So thank you everyone until next time. Thank you for tuning into the Fair Housing Insiders. Take care.
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