A decision from a federal District Court in California provides an in-depth analysis of Section 804 of the Fair Housing Act (the "FHA"). Fair Housing Congress v. Weber. This case involved a 26-unit apartment complex located in Torrence, California (the "Property"). Former tenants who had small children and a fair housing organization brought suit against the manager and owners of the Property, claiming that some of the rules, formal and informal, violated the FHA by discriminating against families with children. Some of the apartments have their entrances on the ground level, but the bulk of the units have second-floor entrances.
Rule 8 of the Property’s "Pool and Building Rules" states in part:
"Children will not be allowed to play or run around inside the building area at any time because of disturbance to other tenants or damage to building property. Bikes, carriages, strollers, tricycles, wagons, etc. must be kept inside apartments or in garage area and not left outside..."
The Property manager, who had experienced a dangerous situation involving another former tenant, also had an informal rule that she would not rent any of the units with second floor entrances to families with small children, and she communicated this rule to respective tenants.
Section 804(c) of the FHA makes it unlawful to "make, print, or publish...any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on familial status..." Section 804(b) of the FHA prohibits, in part, discrimination in the "terms, conditions, and privileges of a rental dwelling because of familial status."
The court easily found that the first sentence of the Property’s Rule 8 clearly was a restriction on the use of apartment facilities by tenant children, and since it discriminated against tenants with children on the basis of their familial status, it violated Section 804(c). The court also found that this sentence violated Section 804(b). As far as the second sentence of Rule 8, unlike the first sentence, it was not discriminatory on its face. There was no evidence that it indicated any preference, limitation or discrimination based on familial status, so the court found that it did not violate Section 804(c). In essence, someone reading this sentence would not infer an anti-child preference; it required all tenants to keep areas of the Property clear. The court also ruled that the second sentence did not violate section 804(b).
The plaintiffs also charged that the Property manager’s practice of "steering" families with small children away from apartments with second-floor entrances violated the FHA. As the court explained, ‘Steering’ is not an outright refusal to rent to a person within a class of people protected by the statute; rather it consists of efforts to deprive a protected homeseeker of housing opportunities in certain locations." So, even if the Property manager’s preference not to have families with small children occupy the second-floor entry units is based on legitimate safety concerns, her informal rule nonetheless violated Sections 804(a) and (c).
In addition, even though the owners of the Property did not participate in the actual discriminatory practices, as the court pointed out, the duty imposed by the FHA not to discriminate may not be delegated, and "a property owner is liable for the discriminatory acts of employees even if the property owner instructed his employees not to discriminate."
Fair Housing Congress v. Weber, 993 F. Supp. 1286 (E.D.Mo. 1998).