How to Avoid Housing Discrimination Based on Family Status

By Kimberly Rau, MassLandlords, Inc.

The federal Fair Housing Act protects individuals against housing discrimination based on family status. This includes protections for families with minor children (parents or guardians), pregnant people and those in the process of or intending to adopt or otherwise gain custody over minor children.

Children need good, safe places to call home, just like everyone else. Federal and state housing laws work to protect those who are most vulnerable to discrimination, which is why you cannot refuse to rent to people with children.

This means that, except in very specific circumstances, you cannot deny tenancy to people based on the fact that they have or plan to have children in their home. MGL Ch. 151b Section 4 specifically prohibits saying “no children” (or prohibiting any other protected class) when advertising available housing.

What are the exceptions to the familial status discrimination law?

There are only two ways that you may decline to rent to someone with children. In Massachusetts, owner-occupied buildings with two or fewer units are exempt from some of the fair housing protections. This is called the “Mrs. Murphy” exemption, and while we don’t recommend you utilize it, it does afford landlords in that specific situation the ability to refuse certain tenancies.

The Mrs. Murphy exception does not allow landlords to discriminate based on race or color, and there are still criteria to meet in order to stay on the right side of the law when invoking it. For instance, you cannot in any way advertise that you will not rent to families with children. Check with an attorney before making any decisions if you are in doubt.

The federal Fair Housing Act also allows certain properties to restrict residency to anyone over the age of 55 or 62. Such “age-restricted” housing complexes must meet three standards to qualify:

• At least 80% of the units must have at least one occupant who is 55 years of age or older; and
• The housing community must publish and follow rules that show its intent to operate as age-restricted; and
• The housing community must comply with federal regulations for age verification of all residents.

This exception does not permit discrimination based on race, color, religion or any other protected class.

Can I say “no children” if my apartment has lead paint?

Many properties constructed prior to 1978 may still have lead paint. Studies have shown that lead paint can be harmful to children; therefore, landlords must delead their properties if children under age 6 will be living in them. If a tenant is pregnant, you also must delead the property (and not when the baby arrives, but as soon as you learn of the pregnancy). This is why we say that the best time to delead your property was during your last vacancy. Deleading an occupied residence is more challenging than deleading when the place is empty.

If you do not delead, you will find yourself liable for any injuries suffered from lead poisoning, even though lead can certainly be found other places than residences. Without a certificate of deleading, you as landlord are always going to be held responsible for damages. With a certificate of deleading, the injured party must prove their injuries were from lead on your property.

Deleading can be very expensive and time-consuming, but having a rental unit with lead paint is not an excuse to say “no children.” You must delead your property.

Can I ask how old the tenant’s children are?

For the purposes of the rental application, you should ask how many people over 18 years old will be living in the house. Get a complete application from each occupant 18 or over.

For the purposes of ensuring you are in compliance with the lead laws, ask for the names and ages of any minors who will be living in the rental after you agree to rent to the tenant. Ideally, you will do this at the lease signing. (If you ask at the application stage, you could appear to have discriminatory intent.)

What if my rental doesn’t have enough bedrooms for all of an applicant’s children?

As long as the rooms meet the proper space requirements as outlined in the state sanitary code, that’s your tenant’s decision, not yours. Children of the opposite sex may share a bedroom as well, at the discretion of their parent or guardian. The idea that boys and girls cannot share bedrooms is an urban legend. Housing vouchers will allow for separate bedrooms for opposite-sex children, but a parent is not required to rent a place with separate bedrooms.

To protect my property, can I inspect my rentals with children more frequently?

No, this would be considered discriminatory. If all of your other rentals get a once-a-year inspection (recommended at minimum), that’s what the rentals with children should get, too. Don’t go in twice (or more) unless you are going into everyone’s unit and performing two or more inspections a year.

You also cannot charge a higher security deposit than you normally would just because a tenant has children.

What should I do about noise?

This is a good time to point out that children are also entitled to live in the place they call home. This means you cannot tell parents that their children must be silent or not make noise with toys, play in the yard or ride their bikes in permitted areas. Excessive noise is still excessive noise, but you handle those complaints as you would anyone else, on a case by case basis.

To deal with potential noise issues, your first steps should be preventative. Insulate with rock wool between floors and consider drop ceilings with acoustic tile to help muffle overhead noises. Underlay your floors with a layer of cork to lessen how much sound will move between floors. As a bonus for your tenants, this will also help muffle the acoustics within the room itself.

If another tenant complains about noise, investigate the cause before deciding the parents are not doing enough to control their children. Certain ages are noisier than others. Even the most mellow baby will sometimes cry at night; babies with medical conditions or colic may cry a lot more. Even the gentlest toddler will have a screaming meltdown at some point or decide the kitchen floor is a great spot for a pot-and-pan drum solo. Some of these things may be within the parents’ control, others are not. Remember: this too shall pass.

If you feel that the level of noise coming from the children in your rentals is excessive, and your other tenants are upset, consider community mediation. Not just for landlords and tenants who are trying to avoid eviction, community mediation can be used to try and fix many kinds of disputes. Through it, your tenants may be able to come up with workable compromises, or the mediator may be able to connect the parents with services for their child if necessary.

One of my rentals is in a nicer school district. Should I suggest that one instead?

No, this could be considered “steering,” that is, leading a prospective tenant away from the unit they are interested in in favor of a different unit (in the building, a different neighborhood or town, or a rental managed by someone else).

If a prospective tenant asks about the school district, answer honestly, but let them do their own research and make their own decisions about where they want to live. They may intend to send their child to a private school, homeschool them or have reasons they want their children to attend that school.

Other examples of steering would be mentioning the cranky neighbors who dislike children, talking about how it’s a “rough” neighborhood for kids or other comments that make it seem like your rental is not a good fit for children.

I prefer to keep all of my tenants with kids on the first floor. Is that okay if all of the units are identical?

No, keeping all of your tenants with children restricted to one area of the building would also be discriminatory. If a unit is available for rent, it has to be available to everyone equally.

What if my building has a sex offender in it? Should I warn tenants about this?

Where registered sex offenders live is a hot-button issue. There are three levels of sex offenders, categorized by the danger the individual poses to the public as well as their likelihood to reoffend. A level-one sex offender is considered to have a low risk of re-offending and poses a low degree of danger to the public. Members of the public cannot access information about level-one offenders.

Level-two offenders have a “moderate” risk of re-offending and pose a moderate degree of danger to the public. Level-three offenders have a high risk of re-offending and pose a high degree of danger to the public. Information on level-three offenders and level-two offenders classified after July 2013 is available to the public.

You do not have to agree to rent to sex offenders, though broad citywide ordinances banning sex offenders from living within certain parameters have been struck down by the state. We recommend screening using our applicant qualifier, which has level-two and -three sex offender status as immediate disqualifiers. If you apply this rule evenly and screen everyone, you are behaving legally.

But suppose you have a tenant who is a sex offender. There are many different crimes that can get someone classified as a sex offender, not all of which are against children. Registered sex offenders may have different constraints as to where they may live depending on what crime they were convicted of.

As a landlord, you are not a judge or a police officer. A registered sex offender must adhere to whatever parameters are placed on them. If a child moves into the building and the other tenant is not allowed to live so close to children, they may have to move, but that is not your job to enforce. They will need to report this to whoever is supervising their release and proceed accordingly.

On the other hand, a parent may not want their child to live in the same building as any level-two or -three sex offender, regardless of their offense. Since it is a matter of public record, you could disclose the fact that a level-two or -three offender lives in the building and let them know where they can access the public sex offender database to get more information. The choice to rent or not is then up to them.

Remember that level-one sex offender information is not available to the public, so if you happen to have this information about one of your tenants, you should not disclose it without that individual’s permission.

As always, consult with an attorney if you have questions about your specific situation.

I can’t charge a higher security deposit, but what counts as “reasonable wear and tear” with children?

When you are inspecting your unit after your tenants move out, there are certain things that are considered “reasonable wear and tear.” These issues are the expected maintenance concerns that come with people living in the unit, and typically you cannot withhold a security deposit for them.

Some examples of reasonable wear and tear include a sink that is slow due to grease buildup, a dent in the plaster where the doorknob has hit one too many times or an accidental wine stain on the carpet. Excessive damage could include a carpet that has been cut, a missing ceiling fixture or holes in the wall that cannot be attributed to normal activity.

What happens when there are kids in the home? Do you have to be more lenient with what you consider reasonable wear and tear?

The answer is no, you do not have to accept large amounts of damage in the name of accommodating a family with children. Smudges on the walls or doors are normal (we recommend using paint that is easily cleaned in all your rentals); walls substantially covered in crayon or marker would not be considered “reasonable.” A dent behind the kid’s bedroom doorknob is normal, massive dents all over the place from toys or kicking feet are not.

In all cases, make sure you do a walkthrough and have a conditions statement signed by you and the tenants before they move in, otherwise you won’t have a leg to stand on regarding the security deposit.

Conclusion

Just like military members, the disabled, people of all origins and those in every other protected class, children deserve a place to live. Denying a tenancy because children will be living in the home not only limits your options as a landlord, it could land you in court. Focus on keeping your rental safe and ready for all tenancies that otherwise meet your requirements.