Subjective Opinion vs Objective Standard
Everyone has an opinion, but is every opinion correct? Topics as meaningless as grape or cherry can spawn fierce, if good-natured arguments. If you’re discussing popsicle flavors, opinions are fine. But subjective opinions don’t have any place in housing management and decision-making. Fair housing and anti-discrimination laws provide the objective standard with which to judge housing issues and complaints. A recent fair housing complaint provides a context for the challenges real estate professionals face in leaving their personal opinions out of clients’ housing decisions.
Problem
A couple with two children lived in a one-bedroom unit, with another child on the way. Beyond the one bedroom, the unit had a living room, a kitchen, and a bathroom. Once the baby was born, five people would occupy this modest space. The unit had been managed by the owner, who had allowed the four people to live in the unit, and may have allowed them to stay even after the couple’s third child was born. However, before the couple could celebrate the birth, the owner hired a management company to oversee the unit.
Mistake
The management company assumed four people could not live in a one-bedroom unit because they felt it was an overcrowded situation. Therefore, they decided to evict the family. Unfortunately, the decision was not based on any legal analysis or fair housing rules. Rather, the decision to evict was based on the management company’s opinion that the unit was too small to accommodate four people. (At the time, the management company was not aware the couple was expecting their third child.)
Result
The couple filed a fair housing complaint alleging, among other things, discrimination on the basis they had multiple children. The couple contended if they didn’t have children, or had only one child, the management company would not have evicted them. Prior to the birth of the couple’s third child, as small as the unit was, it came very close to being large enough to accommodate a family of four. However, the arrival of the couple’s third child qualified the unit as overcrowded based on the space available and the age and number of occupants. This objective analysis meant the family would have been forced to move, and ultimately meant the management company was not sued for evicting the family.
Prevention
Overcrowding is a measurable condition based on the total number of occupants, ages, and total square footage. In this case, the children were young enough that it was acceptable for the parents to use the living room as a make-shift bedroom with either one or both children sleeping there.
In any situation where overcrowding appears to be an issue, owners, landlords, and management companies need to understand how objective decisions are made. In the above case, the unit was too small to house four people, however only by a few feet. In the spirt and intention of the fair housing law, the couple would have been allowed to remain in their unit absent the birth of their third child. Had the children been teenagers, the result likely would have been different.
Within the bounds of the law, it is a parental prerogative to determine where children will sleep. In the final analysis, housing providers should never base a housing decision on their personal beliefs or opinions, but on objective standards outlined in fair housing and anti-discrimination laws.
For more information about E&O coverage and other risk management topics, visit pearlinsurance.com.*The use of a power of attorney is not considered a real estate service under the Real Estate ProtectionPlus E&O policy.This article was produced in conjunction with AXA XL and is not to be taken as legal advice.