Landlord Tenant Q&A with LAURENE H. YOUNG (B), MPM, RMP, REALTOR

LAURENE H. YOUNG, (B), MPM, RMP, REALTOR
Young Hawaii Homes, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers

Q. I really do not want to rent to children. My rental property has many beautiful upgrades and I feel that it is better suited for a working or retired couple. I’ve never had a problem attracting this type of tenant before but now all the people I have shown it to have two or three children. Is there any way I can exclude children?

A.The Fair Housing Act prohibits discrimination based on race, color, religion, national origin, sex, disability and familial status (Hawaii includes age, sexual orientation, marital status, gender identity expression and HIV status). So, you usually cannot deny a rental to a qualified family with children. A family consists of a child or children under the age of 18 living with a parent, a person who has legal custody or a designee of the parent or legal custodian with the parent or custodian’s written permission. Familial status protection also applies to pregnant women or anyone trying to obtain legal custody of a child.

There are some exceptions to the familial status requirement. Some housing for older persons (55 years of age or older) is exempt, provided it satisfies certain criteria (significant facilities and services designed for the elderly, policies and procedures that demonstrate the intent to be housing for the elderly, and at least one person 55 years of age or older living in at least 80% of the occupied units.)

Another exception pertains to a private individual owner of a single-family house provided that the owner does not own more than three single-family houses at any one time, does not own a dwelling intended for occupancy by five or more families, and is not in the business of renting properties. Section 803 of the Fair Housing Act states that an owner can only rent such a unit “(A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B) without the publication, posting or mailing, after notice, of any advertisement or written notice …” In other words, if you qualify, you can discriminate if you do not use a professional rental agent and you do not advertise in writing. It would be very difficult to rent a unit without advertising in the media, so you would have to rely on word of mouth.

Owners may also discriminate if they have “rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.” An example might be a female owner living in one of the rooms asking that only other females live in the other three rooms.

I understand your reluctance to rent to children. However, there are many children who are well behaved and may cause even less of a problem than some adults. You could make it a practice to interview everyone who will be living in the unit, including the children, and then make a decision based on those interviews. The key is to be consistent in how you treat all applicants and make as objective a decision as possible. Children are required to follow the same rules as all other tenants. Noise problems, whether because of the children or because of the adults, should be dealt with in the same way. Parents are responsible for any damage caused by them or their children.

My advice is to be very careful if you discriminate based on Section 803 of the Fair Housing Act. You can minimize discrimination complaints by treating all applicants the same, even if they are children.

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