Landlords Need to Know Obscure Real Estate Laws

An area of law that we see frequently raising questions concerns the discrimination in property-rental situations and they primarily come from both landlords and tenants.

Although most people now seem to be aware of legislation that prevents discrimination based upon race, color, national origin, age and gender, there also are both federal and state statutes that protect against discrimination based upon some lesser-known factors. Landlords in particular need to be aware of rules and regulations applicable to children.

Most landlords probably know that it is against the law to refuse to rent an apartment to someone simply because he or she has a child, but the prohibitions on discrimination are much broader.

In our office we've seen cases in which some landlords, for example, limit people with children renting first-floor apartments. Courts have found this to be "impermissible discrimination."

One area where special rules for children often apply is regarding use of an apartment complex swimming pool. Many complexes restrict the hours in which the children can use the pool. Apartment or homeowners associations often enact these rules because, understandably, some older residents may not like to use the pool with children.

Although a homeowners association or apartment owner may establish rules to try to accommodate all the residents, it is illegal to deny or unduly limit the use of common facilities simply based upon either family status or age. If, for example, your pool rules in effect prevent children from using the pool because they are limited to a few hours per day or are limited to hours in which children are not normally in the pool, the courts will probably hold that the regulation is impermissible discrimination.

Another area in which differing regulations may be illegal is with use of the common facilities such as the grass and common areas, or clubhouses. Again, if regulations restrict children from playing on the grass, the courts will probably hold the regulation is illegal if adults are allowed to play on the same grass. Many landlords or homeowners associations use rules and regulations that were prepared a number of years ago. Often these old documents may contain rules and regulations that are now illegal. Landlords and homeowners associations need to be aware of the changes in the law and consider updating their rules and regulations to avoid legal problems in this area.

While it might smack of government "Big Brother" interference, we are aware, based upon a recent case our office handled for a landlord, of the "testing" for discrimination by a federal agency, which had people pose as tenants looking for apartments.

If these so-called "testers" find an illegal restriction in renting communicated by a landlord or manager, the next notice to the landlord may be citations under various federal civil rights laws. A landlord or homeowners association needs to carefully analyze any rule or regulation that treats children and adults differently.

Correspondingly, if you are a renter or homeowners association member and think certain restric­tions or regulations are unfair, you could be right. There are some very serious penalties in the anti-discrimination statutes.

In addition to damages, landlords or associations may face civil penalties and significant court costs because of differing rules for adults and children. If your apartment, mobile home or condominium complex rules and regulations differentiate between people based upon age or family status, you might want to review the appropriateness of those rules and regulations with an attorney.

James A Testa is senior partner in the San Marcos-based law firm of Testa & Associates, LLP, and can be reached at 760-891-0490