Concert halls come in many sizes to accommodate different types of performers and different sizes of audiences. At Carnegie Hall, there is the famed Isaac Stern Auditorium/Perelman Stage, which seats more than 2,800.

But Carnegie Hall also boasts other performance venues. Weill Recital Hall, which seats 268, less than 1/10 the number as the Stern Auditorium has for decades been the location of many New York debuts. More recently, Carnegie Hall added Zankel Hall, which seats 599. Less well known in Carnegie Hall are the banquet areas, such as the May Room, which seats 34, the Café, which seats 60, and the Weill Music Room, which can seat 200.

These venues are open for rental, subject to availability and space and occupancy limitations. Thus, a full symphony orchestra might not rent Weill Recital Hall for its performance because its musicians might not all fit on the stage. Likewise, a couple planning a 250-person wedding could not use the May Room due to occupancy limitations based upon the size of the room.

Aside from space limitations, performance halls are not dedicated to specific groups or genres. Stern Auditorium/ Perelman Stage has hosted renowned performances ranging from a Horowitz piano recital to one of Groucho Marx’s last performances. Carnegie Hall’s 2019-20 Season includes instrumental performances ranging from a harpsichord soloist to the Philadelphia Orchestra to the Kronos Quartet and vocalists from Soprano Renée Fleming to Roseanne Cash to Beninese singer-songwriter Angélique Kidjo.

Apartment rentals should work much the same way. As with concert halls, the size of an apartment may reasonably limit the number of occupants. While a studio apartment might be constrained to be rented for occupancy by only one or two people, a much larger, three-bedroom apartment might be rented to a family of six. But landlords who add limitations on the number or ages of children who can live in an apartment may run afoul of the Fair Housing Act (FHA).

What is Familial Status Discrimination

In 1988, Congress added familial status to the classes of individuals covered by the FHA. Landlords renting apartments may not restrict rentals based upon any individual’s familial status.

Familial status refers to anyone who lives with a child (someone under the age of 18) as that child’s parent, guardian, or other legal custodian. Familial status also includes individuals attempting to adopt or obtain custody or a child and pregnant women. The only exception to the prohibition on discrimination based upon familial status is for certain senior living communities where at least one resident of each unit is at least 55 years old.

It is not unlawful to restrict the number of individuals who can reside in a rental unit based upon zoning requirements, as long as the restriction isn’t directed at children. HUD has stated that a policy of two people per bedroom is a reasonable limitation.

Example of Familial Status Discrimination–Families with Small Children, Pregnant Women Need Not Apply

Even though familial status was added to the FHA 31 years ago, landlords continue to engage in blatant familial status discrimination. On May 31, 2019, HUD, charged an Idaho landlord with discrimination based upon familial status after it refused to accept a rental application four a four-bedroom home from a family with seven children.

In a 2017 case, United States v. DeRaffele, a landlord refused to rent an apartment to a couple with a young child and the wife pregnant with a second child. Then, when the couple filed a complaint of housing discrimination, DeRaffele retaliated by suing the couple for $1 million dollars in damages.

The government then brought the civil suit against DeRaffele. Amazingly, DeRaffele didn’t settle the government’s lawsuit, and there was a five-day jury trial, which found for the couple and awarded them $85,000 in damages.

Example of Familial Status Discrimination–“No Teenagers Please”

Other familial status discrimination is more subtle. In HUD v. Earmastine Nelson, HUD brought a charge of familial status discrimination against Nelson, who controlled the rental of two apartments in New Orleans. Nelson advertised on Craigslist.com for a new tenant stating “Will accept 2 small children. NO TEENAGERS PLEASE.” Nelson told also told a prospective tenant she “didn’t want a bunch of kids. It’s a beautiful apartment. . . . I didn’t’ want any teenage kids. . ..”

Example of Familial Status Discrimination–Children Can’t Play Alone

Some landlords have allowed families with children to move into the community only to discriminate against them by restricting children’s access to community common areas. For instance, in HUD v. Greenbrier Village Homeowner’s Association, Inc., a condominium association (Greenbrier) adopted rules that restricted the ability of children to play in common areas. No matter what their age, children weren’t allowed to play in common areas without constant adult supervision. Greenbrier’s policy was in the rulebook and on posted notices.

Also, Greenbrier selectively enforced its rules by issuing warnings and violations notices to residents with children but not to adult residents committing the same violations. And, Greenbrier didn’t follow its own enforcement procedure when addressing violation notices issued to residents with children.

Although there might be safety reasons for requiring adult supervision of very young children, particularly in the swimming pool or parking areas, unreasonably limiting all children’s access to common areas violates the FHA. And selective enforcement, by itself, is evidence of discrimination.

Example of Familial Status Discrimination–Children Can’t Swim

Just as it is sex discrimination to unreasonably limit access to community amenities based upon gender, it is familial discrimination to adopt policies which unreasonably limit children’s access to amenities. In HUD v. El Patrimonio Apartments, L.P., the landlord adopted several overly restrictive community policies directed at families with children, including

• Persons under 18 years of age must be accompanied by an adult when using any of the property's amenities and in community areas after 10:00 p.m.

• Pool hours are 10:00 a.m. to 10:00 p.m. A parent or guardian must accompany anyone under the age of 16 years.

• No children under the age of 18 will be allowed in the pool at any time, unless accompanied and supervised by a parent, guardian or a person over the age of 18 who has been given written authority by the parent or guardian to supervise the children and who has assumed responsibility for such supervision.

Under these rules, a 17-year-old could sit by the pool but couldn’t go in the pool unless a parent or guardian was present. And 17-year-olds, who were old enough to drive themselves to extracurricular activities and jobs which might last beyond 10p.m., weren’t allowed back into the community after their activity or work unless a parent met them outside the community and accompanied them into the parking lot.

And this landlord’s penalty for violation was stiff. One tenant whose children were seen outside unsupervised received a $250 “fine” from the landlord, nearly one-half of that tenant’s monthly rent. Plus, the landlord threatened to call the police if the children were outside unsupervised again.

Example of Familial Status Discrimination–No Outside Play Allowed

Some landlords limit the size of dogs and other pets, but in Dumas v. Sunview Properties, the landlord went overboard in banning items it considered harmful to the community. Sunview’s rule stated, “No playing with balls, bicycles, roller blades and other toys on the property.” It sounds like the landlord didn’t think children need fresh air and sunshine, because Dumas’ complaint stated that the landlord had “forbidden children from playing outside altogether.”

As if the rules weren’t blatantly discriminatory against families with children, the manager took the rules a step further with the Dumas family. Several times, the manager told the Dumas children they could not play outside, even while they were under direct adult supervision. The manager told their mother that playing with an inflated plastic ball would “disturb the neighbors.”

Example of Familial Status Discrimination–No Children Above the First Floor

In Hamad v. Woodcrest Condominium Association, the condominium association required that all children live on the first floor.

The manager strictly enforced this rule to the extent of asking prospective owners about their plans to have children and steering them to first floor units if their answer was “yes.” One couple moved to the first floor because of this and when they decided to move as their family grew found it difficult to sell their unit because of this restriction.

Another owner of a third-floor condo unit found herself in the position of seeking legal custody of her 15-year-old nephew. The court might have allowed the custody, but the condo board turned down the owner’s request to allow her nephew to move in with her, even though her unit was large enough to accommodate him.

Woodcrest tried to claim these owners weren’t harmed by the rule. The court disagreed, holding that residents have a right to live in a community where the familial-status composition isn’t being manipulated.

Landlord Litmus Test

Concert halls can accommodate soloists and comedians, jazz bands, and rock groups, depending upon the size the hall. Apartment buildings should be much the same, with the family occupancy mix being based upon rental unit size, rather than community policies.

The Hamad Court’s decision provides an excellent litmus test for landlords evaluating their policies –whether the policies “manipulate” the familial-status composition of the community. Landlords may adopt policies for health and safety reasons and may limit the number of individuals in a rental unit. However, all policies should be reasonable and should not artificially manipulate the family composition of the community.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.