Denying Children

11 Replies

I had to share this conversation I just had with an applicant.

She called me to say she is interested in a house I have for rent. But, she also just talked to a real estate office here in town that also does property management. They told her that they will approve her application, but the owner of the property wasn't sure if he wanted her two kids in his property. He had to think about it and let her know.

I was shocked that a real estate office would be so stupid as to tell someone that.

I was honest with her and told her that this is a violation of the Fair Housing Act and I was happy to have her family move into my rental. :)

I could see an individual homeowner making that mistake, but a licensed real estate firm? They should have told her that the owner was looking over her application, not that he might not allow kids in his property. Stupid things people say!

The one thing you CAN say with respect to children is that because children are occupants, and only a certain number of occupants are allowed per bedroom, that if someone has too many children for a rental you can let them know that their occupants exceed the limit allowed by law.  (For example a family with 6 children couldn't occupy a 2-bedroom place.)

You should know that a rule of general applicability limiting the number of occupants per room has been deemed by HUD to be generally reasonable. Their interpretation is specifically discussed in a memo named the Keating Memo. HOWEVER, in the memo HUD goes on to say that the presumption of reasonableness is rebuttable and they will consider the following factors:

1. Size of the bedroom and unit 2. Age of the children 3. Configuration of the unit 4. Other physical limitations of housing (i.e. capacity of the septic, sewer, or other building systems) 5. State and local law 6. Other relevant factors, such as 7. if the landlord has made discriminatory statements 8. if the landlord has taken steps to discourage families with children from living in its housing 9. if the landlord has enforced its occupancy policies only against families with children

I am writing this because a lot of landlords wrongly believe they can just institute a 2-person per bedroom policy and be fine, but that is not the case. There is no bright line rule unfortunately. As always, this is just general information, not legal advice for any particular situation. 

Originally posted by @Michelle L:

I could see an individual homeowner making that mistake, but a licensed real estate firm? They should have told her that the owner was looking over her application, not that he might not allow kids in his property. Stupid things people say!

So it is ok not to allow kids in a rental, just not ok to tell applicants that?

Just to point out the discrepancies in permitted occupancy rates, the town in which my property is has the following ordinance: 

Any (ANY!) number of persons may occupy a dwelling, provided they are related. I'm not sure how far down the kinship tree that extends, but that means you could put 20 people in a 2-bedroom house. (My 800-sq. ft. SFR used to have 10 people living in it!)

If persons are unrelated, only four may occupy a dwelling. This means a six-bedroom house could only have four people in it. 

I'm not certain what happens when one of the four has a relative living with them . . . gets too complicated. Point being, there are all sorts of different local requirements that may be more or less restrictive than the HUD guidelines.

Personally, I'd consider putting an anonymous bug in the ear of the local housing authority . . . that 's just blatantly wrong.

Michelle Na It's a mess.  You don't want to waste people's time but if you tell them the truth you can be held accountable. 

Originally posted by @Trevor K.:
Originally posted by @Michelle L:

I could see an individual homeowner making that mistake, but a licensed real estate firm? They should have told her that the owner was looking over her application, not that he might not allow kids in his property. Stupid things people say!

So it is ok not to allow kids in a rental, just not ok to tell applicants that?

Not exactly. That is discrimination! I recently had a seasoned investor tell me there are two types of landlords: those that have been sued (me) and those that are going to be sued. I was not sued for discrimination...and certainly don't want to defend a suit like that. Don't let children be your deciding factor in accepting tenants. Remember, if you have a generous security deposit (we get them from all tenants) you will have the funds to cover any excessive damage.

I have never told a applicant WHY they didn't get approved. I just say it's been rented.

I had a young girl try to press me on why and ask if it was because she was pregnant. I didn't know she was. I just continued that it was rented and that if another unit came up I could call her.

Of course it didn't have anything to do with her boyfriend who had obviously lost a fight judging by the shiner he was wearing. He never came inside the apartment but stayed outside on his phone telling another guy about how he was going to get even.

So it is ok not to allow kids in a rental, just not ok to tell applicants that?

@Trevor K.  Of course not. My point was that it was stupid of a license real estate agent to say something so stupid. It is also really stupid of them to allow an owner to do that. I would not work with an owner that discriminated.

I once met with a prospective client that told me he didn't want jews in his house (yes, he actually said that). I said "have a nice day" and walked out.

Originally posted by @Jason Quick:

You should know that a rule of general applicability limiting the number of occupants per room has been deemed by HUD to be generally reasonable. Their interpretation is specifically discussed in a memo named the Keating Memo. HOWEVER, in the memo HUD goes on to say that the presumption of reasonableness is rebuttable and they will consider the following factors:

1. Size of the bedroom and unit 2. Age of the children 3. Configuration of the unit 4. Other physical limitations of housing (i.e. capacity of the septic, sewer, or other building systems) 5. State and local law 6. Other relevant factors, such as 7. if the landlord has made discriminatory statements 8. if the landlord has taken steps to discourage families with children from living in its housing 9. if the landlord has enforced its occupancy policies only against families with children

I am writing this because a lot of landlords wrongly believe they can just institute a 2-person per bedroom policy and be fine, but that is not the case. There is no bright line rule unfortunately. As always, this is just general information, not legal advice for any particular situation. 

Jason makes very good points here around "reasonableness".  A couple of things to remember...  1)  You need to have your policies documented.  2)  You need to apply your policies consistently. 

So, a suggestion for determining "reasonableness" for your policies and taking a great deal of the subjectivity out of it...  Find out what your state requires as the minimum bedroom space per child in a licensed foster care home.  You should just be able to Google on it.  In Texas it is a minimum of 40 sq ft per child.  If you have 2 children in a bedroom, that bedroom would need to be at least 10 x 8, 3 kids would be 10 x 12, etc.

For those of you that mentioned bedroom and occupancy limits, that was not the case. The house they looked at had 3 bedrooms and they have 2 young children, both girls.

Fair Housing Act applies to those in the business of providing housing, it doesn't restrict a homeowner renting their personal residence, they can discriminate but when a licensee is injected into that picture, they can't discriminate.

The only exception to age discrimination is in senior living complexes or facilities, the 55, 60, 65 an up crowd, they can restrict who lives in such communities but not who may visit so much.

HUD rental guidelines apply to properties receiving federal subsidies, Sec 8 for example or units managed under Section 42 of the Tax Code. Multi family over 4 units are covered. Single family units are generally exempt from age and occupancy requirements at that level but generally will come under state and municipal codes being the same or more stringent. Having an 11 year old girl and boy and mom in a two bedroom house is fine as mom and the girl may be in the same bedroom. A little common sense needs to be used too, a family unit can't be defined in reality for those of legal age and children younger or infants may be sleeping with adults.

Not saying Fair Housing doesn't apply to SFD in sales or rentals when listed or the seller/landlord is represented by those required to follow fair housing requirements, but if I want to rent my spare bedroom to two girls, boys or a couple, I'm not covered as an owner, but I have ordinances to abide by too. Check local restrictions.

Yes, it was pretty dumb for a Realtor to go there.....   

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