Suggestions for Housing Providers
Drafting Tenant and Community Rules
A good rule to follow when drafting rules or regulations is to draft them so they don't single out children or members of a protected class. Rather than having a sign that says, "Children are prohibited from running in the common areas," simply say, "No running in the common areas."Instead of saying, "Children keep off the grass," just say,"Keep off the grass."Rules and regulations that apply to "all residents" are less suspect than rules that single out children.
If you must single out children, consider doing so on the basis of health and safety considerations. For example, if you have a workout room with exercise equipment, ask the manufacturer to inform you what the age is for using the equipment without supervision. Then post a sign such as, "According to the manufacturer this equipment may not be used by anyone under 14 years old, unless accompanied by an adult."
If you're a housing provider, one way to reduce the probability of having a complaint filed against you is to treat everyone the same. Having written guidelines that you follow with each applicant can help ensure you treat everyone the same. Whether you're managing hundreds of units for a large company, or you're an individual who owns and rents a few units, it's a good idea to establish written guidelines for everything: from how you expect the rent to be paid, to your eviction process, to how you expect tenants to behave while living in your dwelling.
Part of your screening guidelines should include an applicant's ability to pay the rent on a timely basis. Therefore, you may ask the applicant to provide employment, income, and credit verification information. How much income and how long of an employment history you require depends on your housing market. You should set standards that allow you to compete for applicants. But setting standards too high may be viewed as trying to keep certain groups of people out of your rentals.
In addition to asking all applicants to verify their income and credit history, you may also ask all applicants to provide character references or criminal history checks. If the applicant has a criminal history, for example, you may chose not to rent to an individual with a conviction that might present a safety issue for other residents in your complex.
If you're concerned about renting to certain convicted criminals, you may establish a criminal background check as part of your application criteria. In establishing a criminal background check, keep the following in mind: put your policy in writing; get the applicant's permission to conduct the background check; enforce the policy consistently; and if you reject the applicant, tell them why.
Consistently applying a criminal background check policy means that you apply the policy to everyone. You apply it to the young and old, black and white,and everyone in between.
Even if you don't establish a criminal background check, you're not going to accept every applicant. Rejecting applicants for legitimate credit or income or character reasons should not invite a complaint if you follow certain procedures. As noted, you should establish written rental criteria that helps all applicants understand how their applications will be screened. Then apply your criteria consistently. If you reject an applicant, send a letter explaining why and keep excellent records.
So you've approved an application and the tenant moves in. Shortly after the tenant moves in, however, you start getting complaints. The newest tenant is apparently harassing other tenants. And you're also getting complaints that they're playing their stereo too loud. What should you do?
When tenants break the rules, you should apply the consequences fairly, consistently, and according to established procedures. What consequences you apply depends on your procedures and on the records you've kept. Some of the records that you should keep include complaints that tenants file against other tenants; complaints that involve the police; letters that you sent to and received from the tenant about lease violations; and any other relevant letters and information. Keeping detailed and accurate records will be important if you have to defend why you evicted the tenant.
If you don't keep good records, proving that you evicted a tenant for a non-discriminatory reason may be more difficult.
How are maintenance and repair requests handled in your complex? Does your staff process repair requests from some tenants more quickly than from others? If so, it could lead to a fair housing complaint. Generally, repairs should be handled in the order that they are received, with emergency repairs taking precedence over routine repairs. Tenants need to understand that routine and non-emergency repairs may take days, or even longer, to complete.
Your tenants should understand how you process repair requests, and they should understand how long it will take before you get to their request. If an emergency repair takes you or your staff away from a scheduled routine repair, call the affected tenant and explain what happened. Among the things that you can do to reduce the probability of having a housing complaint filed against you is to be professional, be consistent, communicate with your tenants, and keep excellent records.
While reasonable modificationsinvolve allowing a tenant with a disability to make a physical change to his unit or to a common area, a reasonable accommodation requires the landlord to change or modify some rule, practice, policy, or service when doing so may be necessary to afford the tenant equal opportunity to use and enjoy the unit. For more information on reasonable accommodations, visit Housing and Disabilities: Reasonable Accommodations and Modifications.
Occupancy standards involve how many people may live in a unit.In December 1998, the U.S. Department of Housing and Urban Development (HUD) published a statement of the standards that it reviews when evaluating a housing provider's occupancy standards, to determine whether actions under the provider's policies may constitute discriminatory conduct under the Fair Housing Act on the basis of familial status (which means on the basis of having children under age 18 in the family).
The Virginia Fair Housing Office applies HUD's occupancy standard, excerpted below:
... the Department believes that an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act. However, the reasonableness of any occupancy policy is rebuttable. Thus in reviewing occupancy cases HUD will consider the size and number of the bedrooms and other special circumstances. The following principles and hypothetical examples should assist you in determining whether the size of the bedrooms or special circumstances would make an occupancy policy unreasonable.
Size of bedrooms and unit
Consider two theoretical situations in which a housing provider refused to permit a family of five to rent a two-bedroom dwelling based on a "two people per bedroom" policy. In the first, the complainants are a family of five who applied to rent an apartment with two large bedrooms and spacious living areas. In the second, the complainants are a family of five who applied to rent a mobile home space on which they planned to live in a two-bedroom mobile home. Depending on the other facts, issuance of a charge might be warranted in the first situation, but not in the second.
The size of the bedrooms also can be a factor suggesting that a determination of no reasonable cause is appropriate. For example, if a mobile home is advertised as a "two-bedroom" home, but one bedroom is extremely small, depending on all the facts, it could be reasonable for the park manager to limit occupancy of the home to two people.
Age of children
The following hypotheticals involve two housing providers who refused to permit three people to share a bedroom. In the first, the complainants are two adult parents who applied to rent a one-bedroom apartment with their infant child, and both the bedroom and the apartment are large. In the second, the complainants are a family of two adult parents and one teenager who applied to rent a one-bedroom apartment. Depending on the other facts, issuance of a charge might be warranted in the first hypothetical, but not in the second.
Configuration of unit
The following imaginary situations illustrate special circumstances involving unit configurations. Two condominium associations each reject a purchase by a family of two adults and three children, based on a rule limiting sales to buyers who satisfy a "two-people per bedroom" occupancy policy. The first association manages a building in which the family of five sought to purchase a unit consisting of two bedrooms plus a den or study. The second manages a building in which the family of five sought to purchase a two-bedroom unit without a study or den. Depending on the other facts, a charge might be warranted in the first situation, but not in the second.
Other physical limitations of housing
In addition to physical considerations such as the size of each bedroom and the overall size and configuration of the dwelling, the Department will consider limiting factors identified by housing providers, such as the capacity of septic, sewer or other building systems.
State and local law
If a dwelling is governed by state or local government occupancy requirements, and the housing provider's occupancy policies reflect those requirements, HUD would consider the governmental requirements as a special circumstance tending to indicate that the housing provider's occupancy policies are reasonable.
Other relevant factors
Other relevant factors supporting a reasonable cause recommendation based on the conclusion that the occupancy policies are pretextual would include evidence that the housing provider has:
- made discriminatory statements;
- adopted discriminatory rules governing the use of common facilities;
- taken other steps to discourage families with children from living in its housing; or
- enforced its occupancy policies only against families with children.
The Building Officials and Code Administrators handbook states that for health and safety reasons you need 70 square feet of bedroom space for one occupant. If you have more than one occupant you need 50 square feet per person. If you have a unit with one-bedroom that measures 10 x 8 or 80 square feet it would be too small for two people. But if you have a unit with one-bedroom that measures 10 x 16 it may be big enough for three people.
Housing providers should strive to balance the requirement to implement a reasonable occupancy standard against their right to protect their property from overcrowding. Housing providers should also strive to balance the requirement to implement a reasonable occupancy standard against their right to protect their investment. Under some circumstances a large unit with three bedrooms may reasonably accommodate seven or eight people without creating an overcrowded situation and without jeopardizing the housing provider's investment. Under other circumstances a unit with three bedrooms may only reasonably accommodate five people. Each situation and complex has to be evaluated based on its own merit.