This article covers acceptable and unacceptable age discrimination in California housing.
California’s fair housing laws
A landlord of an apartment complex with an adults-only rental policy enters into a lease with a pregnant tenant. The lease contains a provision stating no person under 18 years of age can reside in the leased unit.
The tenant gives birth prior to the expiration of the lease.
Civil rights and fair housing laws prohibit landlords from practicing discrimination when locating tenants for a property.
The landlord immediately serves the tenant with a 3-day notice to remove the child from the premises or vacate. The tenant does neither.
The landlord files an unlawful detainer to evict the tenant since the tenant remains in possession and has failed to perform under the notice.
The tenant claims she cannot be evicted since the adults-only policy is an unlawful discriminatory practice and violates the child’s civil rights.
Can the tenant avoid the landlord’s adults-only policy agreed to in the lease?
Yes! The landlord cannot refuse to rent based on age unless the person can be excluded under senior citizen housing laws. The landlord’s adults-only policy violates California’s Unruh Civil Rights Act. [Marina Point, Ltd. v. Wolfson (1982) 30 C3d 721]
Civil rights and fair housing laws prohibit landlords, property managers and leasing agents from practicing any discrimination (which is prohibited because of the protected status of an individual) when locating, negotiating with or handling tenants for a residential or nonresidential property.
However, discriminatory standards practiced by landlords and property managers which are not based on an individual’s societal status protected by law are valid and enforceable.
Standards not based on a protected status include ensuring the tenant:
is financially able to pay the rent based on equally applied creditworthiness standards;
will not damage the property based on prior conduct as a tenant or owner of property; or
will properly conduct himself in the use and enjoyment of the leased premises.
Senior citizen housing
Landlords of senior citizen apartment complexes can exclude children to meet the particular needs of older persons.
Any lease or rental agreement provision that prohibits the use or occupancy of real estate based on a person’s age, sex, race, color, religion, ancestry, national origin or disability is void. [Calif. Civil Code §§51.2; 53]
However, if the lease provision relates to the age of occupants in qualified senior citizen housing, age discrimination is allowed within specific age parameters.
Senior citizen housing is housing:
intended for occupancy only by persons 62 years of age or older; or
intended for occupancy by at least one person 55 years of age or older. [CC §51.3(b)(1); 42 United States Code §3607(b)]
Landlords and owners of qualified retirement communities or senior citizen apartment complexes can exclude children to meet the particular needs of older persons.
To qualify as senior citizen housing, the development or renovation project must have at least 35 dwelling units and obtain a public report issued by the DRE. [CC §51.3(b)(4)]
To qualify a housing development for senior citizen housing with the DRE, the project must provide:
access throughout for persons using a wheelchair;
railings or grab bars in common areas;
bright common area lighting for persons with difficulty seeing;
access throughout without the need to use stairs;
a common room and open space for social contact; and
compliance with FFHA and ADA. [CC §51.2(d)]
Qualified senior citizen housing
Qualified senior housing, under a federal exemption from anti-discrimination law, limits its occupancy exclusively to persons who are 62 years of age or older. [24 Code of Federal Regulations §100.303(a)(1), (2)]
However, a housing project still qualifies for senior housing even though management employees and their families living on the premises are under 62 years of age. To be classified as employees, the employees must perform substantial duties directly related to the management or maintenance of the housing. [24 CFR §100.303(a)(3)]
The 62-or-older restriction excludes all persons under the age of 62, even if one spouse is 62 or older and the other is not. [24 CFR §100.303(b)]
If a project owner elects not to qualify or cannot qualify for the 62-or-older exemption, the project may still qualify under the broader 55-or-older exemption.
80% rule for 55-or-older
To qualify for the federal 55-or-older exemption, the housing project must have 80% of the units occupied by at least one person 55 years of age or older. [24 CFR §100.305(a)]
For newly constructed projects, the 80% occupancy requirement does not apply until the real estate is 25% occupied. [24 CFR §100.305(d)]
Development or renovation of an existing residential complex for senior citizen housing must have been put to use as senior citizen housing immediately after development or renovation to qualify as senior citizen housing. [CC §51.3(f)]
|An underage person may occupy a residential unit in a seniors-only project, other than a mobilehome park, if the person:
A mobilehome park cannot discriminate against a 55-or-older tenant who is married to a younger occupant.
Also, a family member or hired person may reside with the senior citizen if they provide assistance with necessary daily activities or medical treatment. [CC §51.3(c)(7)]
Also, a child or grandchild who is disabled or who has a disabling illness or injury and needs to live with the senior citizen on account of the child’s disabilities may live with the senior citizen. [CC §51.3(b)(3)]
Thus, a mobilehome park cannot discriminate against a 55-or-older tenant who is married to a younger occupant. Federal law does not allow any discrimination when one occupant is at least 55 years of age. [CC §798.76]
Penalties for discrimination
A leasing agent found guilty of discrimination may be liable for damages of no less than $4,000 and no more than three times the amount of the actual damages and any attorney fees. [CC §52(a)]