Although similar in most respects, the federal and state statutes differ in the nature and scope of the exemptions they allow. Where the laws diverge, the stricter requirements apply. This overview will highlight some of the major areas of concern.

Broad Protections

The laws apply broadly to housing of all kinds – condominiums, cooperatives, and homeowner associations, as well as detached single-family dwellings and apartments, with narrow exemptions for small property owners, who are not in the business of owning and managing real estate. But even the owners of two- and three-family dwellings, who are allowed to exclude children in some cases, can’t run ads stating that restriction.

The general ban on discrimination against children includes discrimination against pregnant women. Landlords cannot refuse to rent a unit to a pregnant woman, nor can they evict a woman who becomes pregnant after occupying a unit, as some landlords have tried to do. The Massachusetts lead paint law also specifically prohibits landlords from refusing to rent units containing lead paint to families with small children. It is illegal for a child under the age of six to occupy a dwelling containing lead paint, but the remedy is to de-lead (or partially de-lead) the unit, not to prohibit children from occupying it.

Retirement Communities

 

Both the state and federal fair housing laws permit the exclusion of children from developments intended for older occupants, but their eligibility requirements differ. Both statutes exempt federally or state-aided elderly housing developments. The state law also exempts elderly retirement communities occupied by individuals 55 and older, if the development spans 5 acres or more, while the federal law provides two key exemptions for: Residential communities intended for and occupied by individuals 62 and older; and Housing intended for and occupied primarily by residents 55 and older.

To qualify for the 55 and older federal exemption, developments must meet requirements established in the Housing for Older Persons Act of 1995 (HOPA). Specifically, at least 80 percent of the units must be occupied by at least one resident who is 55 or older, and the property owner must be able to demonstrate, through written policies, lease provisions, advertising, etc., that the community is designed exclusively for older residents. That requirement applies to the entire development; an apartment or a condominium community could not simply set aside one section for elders and exclude children from the entire complex.

Rules and Regulations

The rules barring discrimination against children (and others) cover the way housing is marketed and presented to prospective buyers and tenants as well as the regulations established for owners and tenants. The Department of Housing and Urban Development (HUD), which enforces the federal fair housing statute, periodically sends “spotters” to test for discriminatory practice, and a large percentage of those tests produce fair housing complaints. That’s something property owners and managers will want to keep in mind when reviewing the policies and procedures they establish.

Compliance issues are rarely simple, but the governing principle is clear: You can’t discriminate against children, nor can you establish policies that discriminate indirectly. Occupancy restrictions are a good example. Both the state and federal laws bar arbitrary limits on the number of people who can occupy a dwelling unit. What’s reasonable? You can generally assume that policies allowing no more than two occupants per bedroom will pass muster under federal law, thanks to a lengthy, although not entirely unambiguous HUD policy statement on the issue. That 1991guidance clarifies HUD’s general view, but it does not provide a secure safe harbor; the agency will consider the size of the bedrooms, among other factors, on a case-by-case basis, in determining whether specific occupancy limits are discriminatory.

Under Massachusetts law, the state Sanitary Code sets the occupancy standards, based not on the number of rooms but their size. The code requires at least 150 square feet of floor space for the first occupant and at least 100 square feet for each additional occupant. Sleeping areas must provide at least 70 sq. ft. of floor space for the first occupant and no less than 50 sq. ft. for each additional occupant. If the two bedrooms in your unit have only 75 sq. ft. each, you could probably refuse to accept a family of six, but you’d be hard-pressed to bar that family from a unit with three bedrooms, if each bedroom has 150 sq. ft.

Reasonable Regulations

You can establish rules designed to ensure safety, but you must apply those rules uniformly and enforce them even-handedly. For example, you could reasonably prohibit roller-blading on the roof and you could probably bar bike riding in the parking lot as well. But you could not prohibit children from riding their bikes while allowing adults to ride theirs.
 

Policies governing the use of recreational facilities can be particularly problematic. HUD frowns darkly on rules barring children from recreational areas or restricting their access to those facilities. A rule requiring adults to accompany young children in the pool area is reasonable, but adult-only swim times and policies barring children from the clubhouse or other common areas are likely to draw fair housing complaints.

Marketing Do’s and Don’ts

There are many myths about what the fair housing laws will and will not permit in advertising and marketing materials. Some of these concerns are exaggerated, but caution and sensitivity are advisable. Simply stated, don’t put anything in writing or make any statements that assert or imply that you exclude children, or would like to. A few specific suggestions:
 

LEGAL BRIEFS

Courts Balk at Takings. The Supreme Court’s Palazzolo decision, which we discussed here several weeks ago, is not the only indication that the courts are taking a more solicitous view of individual property rights. In several decisions this year, various appeals courts have been far less inclined than in the recent past to accept “eminent domain” assertions of local and state governments. A few examples, reported recently by The Wall Street Journal:

• A Pennsylvania appeals court blocked a proposal to raze a steel fabrication plant to make way for a hotel office development, finding that the local redevelopment authority had improperly delegated its powers to the project developer.

• In New York, a federal judge issued a temporary stay prohibiting the community of Port Chester from condemning a rental building to create a site for a planned grocery store complex. The court found fault with the state law allowing a newspaper ad to serve as notice of a planned government taking.

• The Mississippi Supreme Court ruled that a planned taking in that state might be “substantially in excess of the immediate needs of the public use.”
   

Those decisions, and similar results in other cases, indicate that “courts finally are setting some limits to the exercise of eminent domain,” David Callies, a professor of property and land use law at the University of Hawaii law school, told the Journal. Other land use experts agree that the courts are beginning to question what had been a virtually unquestioned authority of government to take private property for public needs. As Callies observed in the Journal article, “The courts are saying, ‘if you’ve got a redevelopment scheme, we’ll probably buy that. But we’re not going to buy your virtually turning over the power of eminent domain to the private sector.”

Whose Property Is It? In a taking of another sort, a federal appeals court has ruled that a Texas “IOLTA” program that uses the interest on lawyer trust accounts to finance legal services for the poor is in unconstitutional taking of private property without compensation.

That decision, in Washington Legal Foundation v. Texas Equal Access to Justice Foundation, applies only in Texas, but it has implications for similar programs in every state in the country.

According to some estimates, IOLTA programs have generated more than $2 billion for indigent legal services sine the early 1970s, when the programs were established. “That’s a vast transfer of property from the client class to the legal community,” Charles Rounds, Jr., a Suffolk University Law School professor and long-time opponent of the programs, told the Miami Daily Business Review.

In this case, a district court ruled that because a client’s IOLTA funds could not generate interest outside of the IOLTA program, there was no “identifiable and compensable loss” and thus no unconstitutional taking. (A divided Texas Supreme Court had ruled previously that interest income on IOLTA accounts does represent private property for purposes of the taking clause, sending the case back to the district court to determine whether the transfer of funds represented a taking without compensation.) Reversing the district court, the 5th Circuit concluded that, in fact, a “per se taking” had occurred, because the state permanently appropriated the client’s interest in the fund against his will. While there was no compensation to order (because the interest generated funds for legal services for the poor), the court suggested that the district court could order declaratory and injunctive relief.

The decision will effectively end mandatory IOLTA programs, attorneys familiar with the case agree, and that infuriates proponents of the program, who think the legal battle was driven not by any serious concern about private property rights, but by opposition to legal services for the poor. Others see even more far-reaching implications, beyond the impact on IOLTA programs, resulting from the court’s application of a “per se” analysis to this case. “This allows judges to disregard the economic reality of the situation facing the client,” one attorney, quoted in the Miami Daily Business Review article explained. “And that “could have mischievous consequences. Once you start saying that when the government makes you pay money that is a per se taking,” he added, “that is potentially a very broad ruling and a big step beyond what the Supreme Court has held today.”

Religious Themes – Taxable Experience. When is a theme park a religious experience? Principals in Zion’s Hope have raised that question in a suit arguing that county officials in Orange County, Florida improperly rejected a tax exemption for two parcels owned by the ministry, including one on which the group’s “Holy Land Experience” is located. The religious organization describes the structure as “a living Biblical museum that conveys its religious message through teaching, preaching, dramatic enactments, special music, and performance and multimedia presentations.” But county officials contend that while the themes may be religious, the development itself provides amusement-park activities and should be taxed accordingly.