Rent it Right
I wrote a note on the application for my boss, asking if I should direct her to a larger unit. He got real upset, and told me that this could trigger a fair housing lawsuit. I never meant any harm; I just didn't know whether the unit was big enough. Did I do anything wrong? --Henry C.
A: Credit your boss with being super sensitive to the problem of discrimination against families, which often happens when landlords set occupancy standards that effectively eliminate families from consideration.
In response to these practices, the federal government (HUD) has offered guidelines for landlords to follow when setting occupancy policies. That standard is "two per bedroom," but it is not absolute (for example, if a bedroom is unusually large, it might accommodate more).
In addition, landlords may set more restrictive standards if the nature of the property or its systems cannot safely or reasonably handle the number of residents that would result from a "two-per-bedroom" rule.
They may also have to adjust upwards -- for instance, the presence of an infant in the parents' bedroom results in three residents, but no one can seriously claim that the infant overcrowds the room.
Many states have followed the federal rule, and a few have set more generous standards. In California, for example, the rule of thumb is "two per bedroom plus one." But in California, as with the federal rule, the reality of the setup can affect the calculation.
Let's imagine that you, like most, are subject to the two-per-bedroom guideline. Technically, this family of five is over the limit, but as explained, each situation needs to be evaluated in light of the precise setup. If the rental is in California, the family would qualify.
So much for theory. Now, to the heart of your question: Did you do anything wrong? I don't think you did, nor did you expose your boss to a likely charge of housing discrimination. Here's why.
The fair housing laws are designed to prevent landlords from treating specific classes of persons differently (worse) than everyone else, whether by refusing to rent to them, setting more onerous terms and conditions of renting, or making statements that have the effect of discouraging them from living on the property.
You did none of this. Instead, you asked your boss whether the unit you showed the applicant was too small, and whether you should suggest a bigger one.
Critically, you didn't make that observation to the applicant herself, nor did you steer her to the bigger apartment. If you had, and if the original two-bedroom unit would have been appropriate under the occupancy standard of your state, the answer might be different.
That's because your applicant could have concluded that you were trying to discourage her from living there, by telling her that a larger (and presumably more expensive) unit was the only one you'd offer.
Think for a moment about the consequences if the answer were different. No one in your position -- someone learning the business, needing to ask questions of those in the know -- would dare ask a question, for fear of exposing the boss to legal trouble. When people don't ask questions, they don't learn.
Without this opportunity to learn about occupancy standards and steering, you would go your merry way, possibly making risky (though well-meaning) remarks to applicants themselves, thereby discouraging families from renting and possibly violating the law.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at firstname.lastname@example.org.
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