January 2, 2016 • By Dennis Beaver
“We are a family of five, three boys — 6 to 12 — my husband and myself. Last week we moved into a nice apartment here in the Kingsburg area. Prior to signing the lease and paying our deposits, we were told by the manager that this is a family-friendly complex,” the email from “Lois” began.
“They had second floor apartment vacancies, but for ‘safety reasons,’ explained the manager, ‘only ground floor units are rented with families who have young children.’ Reluctantly, we took it, and then, today, this note was taped to our front door:
‘Welcome! In order to keep our complex friendly, children under the age of 14 may play on the common, grassy areas, only with parental supervision. Loud behavior is not tolerated, as several tenants work nights, and the elderly who reside here need peace and quiet. If you cannot supervise your kids outside, they must remain inside your apartment and play quietly.’
“This was not mentioned earlier. Both of us work, the kids come home from school by themselves, are respectful of others and have always played outside without any supervision. Can the management legally require this? And, what about restricting us to a ground floor apartment?” Lois asked.
For the past 16 years, representing families who are victims of housing discrimination, to San Diego attorney Craig Fagan, “Your reader has a good sense of what is improper and has described a clear violation of the Fair Housing Act. It is unfortunate that so many tenants — and landlords alike —have no idea that it is illegal to be treated this way.”
We asked Fagan to describe some of the ways tenants with children become victims of housing discrimination. He began by explaining the important — and often confusing — legal concept of quiet enjoyment.
“First of all,” Fagan points out, “It is important to understand that the law does not allow a tenant complete tranquility in an apartment complex. The Fair Housing Act does not give landlords the right to silence children and keep them indoors for the peace and quiet of other tenants,” citing a common misconception about the legal term, quiet enjoyment, “Which even lawyers frequently misunderstand.”
“Quiet enjoyment does not refer to the level of noise in a property. Rather, this means that the tenant has a right to use and enjoy the property without being disturbed by the landlord.”
“Many managers in good faith, but incorrectly think ‘quiet enjoyment’ means they have the right to tell everyone in the complex to be quiet. That is not the law. There is a balancing which must exist, where tenants are able to live normally, yet without being so loud and disruptive so as to make life miserable for others in the complex.
“For example, babies will cry, they will scream — that is normal. But it is not normal for little Johnny to practice his drums at 11 p.m. A landlord is legally obligated to deal with that annoyance for the benefit of other tenants.
“Housing discrimination against families with children is seen, just as in your reader’s case, when they are restricted to only renting in a particular section of the complex, such as the ground floor. The Fair Housing Act requires that everyone is dealt with equally, and if you treat tenants with children differently, charging higher amounts for rent or greater security deposits, this violates the law.
“Often, we find property owners and managers who do not have children, want it to be quiet, yet they rent to families with kids and then say: ‘Look, we have tenants who work at night, sleep during the day, and need it quiet during the daytime. These tenants just do not want noise during the day so your kids can’t play outside.’
“In one case the court found a violation of the fair housing act where a complex had a rule stating that children could not ‘be running around outside playing.’”
At this point, you might be wondering, “If it is illegal to treat families with children differently, and a landlord cannot refuse to rent to families with children, then how it is possible for there to be Seniors Only residential facilities?”
“Federal law allows for ‘over 55 and over 62′ housing which excludes children and are referred to as ‘Elderly Communities,” Fagan answers. “This requires satisfying state law, applying for a permit, and when successful, it is possible to prevent children from living there.”
Next Time we look at when real danger requires supervision and reasonable limits on where kids can play. In the meantime, www.discriminationiswrong.com is well worth a visit.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.