Occupancy Rule, Assistance Animal, and 'No Children' Advertising
Golden Gate Property Management manages a 24-unit, market-rate apartment complex with a community pool. Its written policy says 'maximum two persons per bedroom.' A family of two adults and three children applies for a two-bedroom unit and is rejected solely under that policy. A current tenant, Mr. Ortega, has asthma and asks to keep a 30-pound dog as an emotional support animal; the manager tells him 'we don't allow pets, and you don't look disabled.' The manager also tells a pregnant applicant, 'The first floor is better for you-families with babies are happier there,' and steers her away from the third floor. A Craigslist ad for the complex reads: 'Quiet building-perfect for young professionals, no children.' The owner says the pool has an 'adults only' rule to keep it calm. A HUD complaint is filed.
1. Analyze whether rejecting the family violates the Fair Housing Act. Does the two-per-bedroom policy provide a defense?
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Familial status is protected under the Fair Housing Act. A blanket two-persons-per-bedroom rule is not automatically lawful. HUD guidance treats two per bedroom as a presumption of reasonableness, but it is rebuttable; the analysis considers unit size, configuration, age of the children, and local occupancy codes. Rejecting a family of five for a two-bedroom solely by rule, without an individualized assessment, can be discriminatory if the unit can safely accommodate them. Here the rejection is expressly 'solely under that policy,' which is evidence of a rigid rule. The 'no children' ad, the adults-only pool, and the steering comment also show familial-status bias and undercut any defense that the policy was neutral. The owner must show a legitimate, nondiscriminatory reason and should document the unit's square footage, bedroom sizes, and code limits. The safer practice is to apply occupancy limits based on health and safety, consider each applicant, and avoid blanket exclusions. The family can file a HUD complaint; damages may include emotional distress and civil penalties.
2. How should the manager respond to Mr. Ortega's emotional support animal request, and what documentation may be required?
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Mr. Ortega's request is for a reasonable accommodation, not a pet request. The FHA requires housing providers to make reasonable accommodations in rules, policies, or practices when necessary for a person with a disability to have equal use of the dwelling. An emotional support animal is an assistance animal, not a pet, so no-pet rules and pet fees do not apply. The manager may not say 'you don't look disabled.' The manager may ask for reliable documentation if the disability and need are not obvious, but may not demand a specific diagnosis, medical records, or an in-person interview. A 30-pound dog is not automatically unreasonable; the manager must consider whether the animal poses a direct threat or would cause undue burden, based on objective evidence. The manager should engage in an interactive process promptly, keep the information confidential, and respond in writing. If approved, the tenant can be held responsible for damage and required to control the animal, but not charged a pet deposit. A denial must be justified and should offer alternatives.
3. Evaluate the 'no children' ad, the 'adults only' pool rule, and the steering statement. What should the brokerage or management company do now?
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The 'perfect for young professionals, no children' ad is illegal on its face: it expresses a preference or limitation based on familial status. The 'adults only' pool rule is also a familial-status restriction unless the complex qualifies as housing for older persons under HOPA (55+ or 62+ with the required percentages and policies); a market-rate family complex does not. Excluding children from a common-area pool denies them equal access. The manager's statement to the pregnant applicant steers her to the first floor and away from the third floor based on assumptions about families, another fair-housing violation. Intent is not required; discriminatory statements and disparate treatment are enough. The owner and management company should immediately stop the practices, revise ads and pool rules, train staff, preserve records, and respond to the HUD complaint through counsel. The brokerage or property manager may face civil penalties, damages, and license discipline. An agent who repeats the 'no children' language can be personally liable.