Dealing with the Rise in Multi-Generational Households
This month, we're going to look at the fair housing implications of the latest trend: the rapid increase in multigenerational living arrangements.
It's not a new phenomenon: Multigenerational households were common until the 1940s, when they accounted for nearly a quarter of the population, according to a recent analysis by the Pew Research Center. But, the researchers say, living with several generations under one roof fell out of favor after World War II, declining steadily until the 1980s, when it fell to about 12 percent of—roughly 28 million—Americans.
Since then, the trend reversed course, gradually increasing until it experienced a big jump in the past few years. As of 2008, a record number—16 percent, or nearly 49 million Americans—lived in a multigenerational household, which is defined by Pew as at least two adult generations or a grandparent and at least one other generation. Most consisted of two adult generations—a household head with an adult child or parent. Slightly more than a third encompassed three or more generations—for example, a householder, adult child, and grandchild, according to Pew researchers. The remainder consisted of two “skipped generations—that is, a grandparent and a grandchild.
ECONOMICS AND DEMOGRAPHICS
Although many factors are at play, the overriding reason for the rapid increase in multigenerational living arrangements is the Great Recession, according to Pew researchers. Financial woes—from the high unemployment rate and the collapse of the housing market—have fueled the trend, particularly among young adults, either unemployed or underemployed, who have moved back with their parents. Many are bringing along their children: The U.S. Census Bureau reports that in 2011, 10 percent of children under 18 lived with at least one grandparent; 78 percent also lived with at least one parent.
Combined with economic woes, changing demographics have fueled the creation of multigenerational households. One key factor is the aging population—and with it, increased levels of disability. The U.S. population 65 and older is now the largest in terms of size and percent of the population, according to newly released data from the 2010 Census. As of April 2010, there were 40.3 million people 65 and older, increasing by 5.3 million over the decade. That group grew at a faster rate than the total population between 2000 and 2010. During that decade, the population 65 and older grew 15.1 percent, while the total U.S. population grew 9.7 percent.
Meanwhile, the nation is becoming more culturally and ethnically diverse. Minorities, now roughly one-third of the U.S. population, are expected to become the majority in 2042, with the nation projected to be 54 percent minority in 2050, according to the Census Bureau. Notably, officials project that the Hispanic population will nearly triple, to the extent that its share of the population will rise from 15 to 30 percent in 2050. The proportion of blacks, Asians, and other racial and ethnic groups are also expected to climb.
Many racial, ethnic, religious, and cultural groups, which have a long tradition of multigenerational living arrangements, have turned to their families even more due to the current economic climate. Pew researchers say that the most likely groups to live in multigenerational households are Asians (25.8 percent in 2009), blacks (23.7 percent), and Hispanics (23.4 percent). By contrast, the share among whites was much lower (13.1 percent). Households may be comprised of perhaps four generations: great-grandparents, grandparents, adult children, and their minor children. And as new immigrants enter the country, they often move in with family members already living here—adding nieces, nephews, aunts, uncles, brothers, sisters, and other relations to the household.
Changing family structures also may lead to multigenerational living arrangements, even among people who are not legally related to one another. When financial troubles hit, adult sons or daughters may move in with family members, bringing with them an unmarried partner—of either gender—along with one or more children from their relationship or previous relationships.
What, you may be asking, does all this have to do with fair housing law? It's that the factors spurring the trend toward multigenerational living arrangements have something else in common: Nearly all touch on protected characteristics under fair housing law.
So, in this lesson, we'll highlight some potential fair housing pitfalls—and offer six rules to help you avoid them when dealing with multigenerational households. Then, you can take the COACH's Quiz to see how much you've learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) prohibits discrimination in housing based on race, color, religion, sex, national origin, familial status, or disability. In many parts of the country, state and local laws also ban discrimination based on other characteristics, including age, sexual orientation, source of income, marital status, and history of domestic violence.
In general, fair housing laws prohibit communities from treating applicants or residents differently than others because of a protected characteristic. An obvious example would be to refuse to rent to a multigenerational household simply because they are Hispanic, while allowing similar-sized white families to live there. The same reasoning applies to a request by a current resident, who wants to offer shelter to her unemployed son and his family. It would be unlawful to grant permission to some residents, but not others, based on a protected characteristic.
On the other hand, fair housing law doesn't require you to allow residents to add family members to the household simply because they're members of protected groups. Communities may apply reasonable occupancy standards—although you could trigger a fair housing complaint based on familial status if you impose overly restrictive occupancy standards that have the effect of keeping families with children under the age of 18 from living in the community.
Subject to state and local requirements, HUD has stated that two persons per bedroom is a reasonable occupancy standard. In other words, the general rule would allow two people per one-bedroom unit; four people per two-bedroom unit; and six people per three-bedroom unit. But the general standard is subject to other factors—including the size of the bedroom, the size and configuration of the unit, the age of the children, other physical limitations of the housing, any state or local restrictions, and other relevant factors—which could make it reasonable to allow more people to live in a particular unit.
When dealing with multigenerational families, you also could trigger a discrimination claim based on familial status if, for example, you allow residents to move in adult sons or daughters, but not grandchildren under 18. Though commonly understood to include traditional families with minor children, the FHA's familial status provisions covers an individual who has—or expects to have—a minor child in the household. Examples include children living with grandparents, noncustodial parents, foster parents, and anyone else who has written permission to care for the child. It also includes anyone who's going through the process of seeking custody of a child, including noncustodial parents, foster parents, or adoptive parents. Specifically, the law defines familial status to include pregnant women and one or more individuals under the age of 18 living with:
An individual with legal custody;
An individual who has the written permission of the parent or custodian;
A pregnant woman; or
An individual in the process of securing legal custody.
Consequently, the FHA makes it unlawful to maintain an “adult community” and to exclude families with children, unless the community qualifies as “housing for older persons” (HOPA). In general, the HOPA provisions exempt qualifying communities from the familial status provisions—which means that the community could lawfully deny the request of resident who wants her young grandchildren to move in with her. To qualify for the exemption, however, communities must comply with strict requirements—it's unlawful to simply impose age restrictions to keep young children from moving in. The law includes a number of technical administrative requirements, and failure to comply means loss of the exemption, leaving the community open to a discrimination claim based on familial status by doing anything to exclude or discourage families with children under 18 from living there.
An overarching issue involved in multigenerational households is disability. For the past several years, disability is the number-one reason behind formal fair housing complaints, and that number is expected to increase as the population ages.
A community may be required to make an exception to its occupancy standards as a reasonable accommodation for an individual with a disability. A community may have to allow a resident's household to exceed the occupancy limit if a member of the household has a disability and requires a caregiver.
Fair housing law applies not only if the resident has a disability, but also if she is associated with an individual with a disability. Citing the law's legislative history, HUD notes that the disability provisions were intended to prohibit not only discrimination against the named tenant, “but also to prohibit denial of housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants or other associates with disabilities.”
That means that if a resident wants a family member to move in to provide disability-related services for her—or to allow her to provide such services to the family member—you must evaluate the request as a reasonable accommodation to your policies, practices, or standards.
6 RULES FOR DEALING WITH MULTIGENERATIONAL HOUSEHOLDS
Rule #1: Don't Discriminate Against Multigenerational Households Based on Protected Characteristics
Maybe you've seen an uptick in applicants with multigenerational families; if not, chances are you'll see one soon, depending on how long before there's significant economic recovery.
To comply with fair housing law, you must ensure that your community doesn't turn away applicants with multigenerational households for discriminatory reasons. As researchers have noted, the economic crisis has caused those hit hardest—racial and ethnic minorities—to turn to multigenerational living arrangements. Don't succumb to stereotypes about recent immigrants or members of particular racial, ethnic, or religious groups who, because of cultural reasons, current economic conditions, or both, want to live in the same household. It's unlawful to refuse to process their application or misrepresent the availability of units because of a protected characteristic.
The FHA also bans unlawful steering—for example, discouraging a multigenerational family from living in your community or showing them only units in a particular area within your community, even if it's already occupied by members of the same racial, ethnic, or religious group.
Furthermore, don't allow personal attitudes to influence decisions about who may live in your community. Changing family dynamics often lead to households comprised of several generations with differing racial, ethnic, religious, or cultural characteristics. These days, it's not uncommon to receive a request from a long-term resident—a white Christian grandmother, for example—who wants to take in her son and his family who are left homeless after a foreclosure. Keep race, religion, and other protected characteristics out of the decision if, for example, the son is Muslim, his girlfriend is African American, and their children are biracial.
Rule #2: Adopt Policies and Procedures for Handling Multigenerational Households
Ensure that your community has policies and procedures in place for handling applications from multigenerational households and, perhaps more commonly, requests from current residents to allow relatives—parents, grandparents, children, grandchildren, even great grandchildren—to move in with them.
Among other things, your policies should address who will be listed as tenants under the lease. Obviously, it must be a responsible party who has the financial and other qualifications to satisfy your screening criteria. Aside from minor children, determine how your community will treat relatives, such as the applicant's mother, or unrelated members of the household, such as the mother of his son's children.
Your policy should address requirements for adult members of the household—in particular, whether they must satisfy your screening criteria and be listed as tenants under the lease. In addition, specify whether you'll allow exceptions to screening requirements and set objective standards for when the exceptions apply. For example, you may grant an exception to financial screening criteria to allow a long-term resident to help out her unemployed daughter and minor grandchild by allowing them to move into the unit. But it's also likely that you'll want to set certain standards for which there will be no exceptions—for example, to exclude anyone currently involved in the unlawful manufacture, sale, or use of controlled substances.
Moreover, it's imperative to take precautions with respect to adult members of a multigenerational household who are not parties to the lease. Professor F. Willis Caruso warns that problems often arise when people move in without complying with some uniform policies and procedures. At the very least, he recommends a rider—to be attached to the lease for every adult member of the household—that identifies everyone living in the unit—and his or her relationship with the tenant. It should also define all household members' responsibilities to comply with community policies and rules and make it clear that the community may evict them individually, or in conjunction with the tenant, for serious rules violations.
Rule #3: Don't Enforce Overly Restrictive Occupancy Standards
Fair housing law bans discrimination based on familial status, which generally means that communities may not exclude applicants or residents with children under the age of 18, unless the community qualifies under strict rules governing “housing for older persons.” Fair housing law extends beyond overt discrimination to prohibit communities from enforcing policies, procedures, or rules that have a discriminatory effect on families with children.
Communities may enforce reasonable occupancy standards to protect the health and safety of their residents, but it's unlawful to apply overly restrictive occupancy standards to keep young children out of the community. In the context of multigenerational households, you could trigger a fair housing complaint based on familial status, for example, if you balk at a resident who says he wants to move his young granddaughter into his one-bedroom unit. The general two-person-per-bedroom rule applies regardless of the age or gender of the occupants, so you may not insist that the resident have a separate bedroom for the girl.
Although it's unlawful to selectively enforce occupancy standards to exclude applicants from certain racial, ethnic, religious, or immigrant groups from living in your community, you don't have to abandon your occupancy standards simply because a multigenerational family is a member of a protected group. For example, you may deny a request by a resident—regardless of her race or other protected characteristic—to move her son, his girlfriend, and their three children into her small one-bedroom unit—unless, of course, you don't enforce occupancy standards consistently or have made exceptions for certain residents in the past.
Making exceptions can lead to fair housing complaints because it suggests unfair treatment if you deny the exception to others, who may be protected under fair housing law. If you make an exception to your occupancy standards—for example, to accommodate a long-term resident whose daughter and family need a place to stay after a foreclosure—make sure you document the reasons for allowing the request, the identities of the additional occupants and their relationships to the resident, and how long they will be allowed to stay in the unit (or whether they'll be required to move to a larger unit). Have them sign documentation to acknowledge their responsibility to abide by community rules and policies and your authority to remove them, but not necessarily the resident, for serious violations.
Rule #4: Follow Procedures for Disability-Related Accommodation Requests
When dealing with multigenerational families, keep in mind that you may be called on to make exceptions to occupancy standards or other rules if necessary as a reasonable accommodation for an individual with a disability.
The law's protection against disability discrimination covers not only a resident with a disability, but also residents without disabilities who live or are associated with individuals with disabilities. It may be a long-term elderly resident with a disability-related need for a caregiver—her adult daughter, who will bring along her two school-aged children. Or perhaps it's the daughter, who was seriously injured in car accident and requires disability-related care from your resident, her mother.
Either way, you must follow your standard policies and procedures for handling disability-related requests for reasonable accommodations, says Caruso. That's true even if there's no formal request. Under HUD guidelines, a resident makes a request for a reasonable accommodation whenever she makes it clear that she's seeking an exception, change, or adjustment to a rule, policy, practice, or service because of a disability.
Let's say it's the resident, who says she has a disability-related need for her daughter to move into her small one-bedroom unit to take care of her. You can't simply deny the request because it would exceed occupancy standards for the daughter and her two children to live there. You must carefully evaluate whether the resident has a disability-related need for an exception to your occupancy standards as a reasonable accommodation to allow her an equal opportunity to use and enjoy her home.
The first step would be to determine whether the resident qualifies as a person with a disability as defined under the FHA. In general, disability means a physical or mental impairment that substantially limits one or more life activities—the law protects not only individuals who have such impairments, but also those who are regarded as or have a record of having such an impairment.
If her impairment isn't obvious, then you may request reliable disability-related information: (1) to verify that she qualifies under the FHA's definition of disability; (2) that describes the needed accommodation; and (3) that shows the relationship between her disability and the need for the requested accommodation.
Even if she satisfies these requirements, you may not have to grant her request if it's unreasonable—that is, it would impose an undue financial or administrative burden on the community or it would fundamentally alter the nature of the community's operations. That's a tough standard, so it's wise to get legal advice before turning down a request on that basis.
For example, let's assume the resident lives in a small studio instead of a one-bedroom unit, and the addition of the adult daughter and her two school-aged children would exceed not only your occupancy standards, but also state and local occupancy limits. Instead of simply turning down the request, you should engage in an “interactive process” to determine whether there's an alternative accommodation that would effectively meet the resident's disability-related needs without unduly burdening the community. An example would be to allow her to transfer to a larger unit. Even if she rejects the offer—for example, because she doesn't want to pay higher rent—you should document the negotiations to show that you did everything you could to craft a workable solution.
COACH'S TIP: Problems involving substance abuse sometimes arise in multigenerational families. Note that the FHA protects those recovering from substance abuse, but it specifically excludes individuals who are currently engaged in the illegal use of controlled substances. Consequently, although you must consider a resident's disability-related request to allow her daughter, who has a history of substance abuse, to move in with her, you may reject the request if there's evidence that the daughter is currently using drugs illegally.
Rule #5: Require All Occupants to Follow the Rules
Take steps to enforce your community rules and to hold everyone living there—residents and their household members—accountable for violations.
To avoid fair housing violations, you must make sure the rules are fair—and that they are fairly applied, regardless of race, color, or other protected characteristic. Inconsistent treatment—that is, selectively enforcing rules violations against some people, but not others, is a sure way to trigger a fair housing complaint.
Generally speaking, state and local landlord/tenant laws give communities the right to evict parties to a lease for violating its key provisions—for example, the obligations to pay rent, keep up the unit, and refrain from interfering with their neighbors' quiet enjoyment of the premises. Subject to state and local law, communities may incorporate into the lease written standards of conduct and hold the tenant accountable for their own violations as well as those committed by their household members and their guests.
Things can get complicated in multigenerational families, where perhaps not all adult members of the household are parties to the lease—for example, if a long-term resident allows her son, an unemployed young adult, to move in with her. If the son starts causing problems—for example, hosting loud parties while his mother is off at work, but ignoring warnings about his behavior—you may want to take steps to oust the son, but allow the mother to continue to live there.
A more worrisome problem—and one that is all too common—involves suspected cases of elder abuse—either neglect or mistreatment of elderly residents by family members who are supposed to be their caretakers. Aside from calling authorities about your concerns, you may wonder about your legal rights to evict the family member, but not the elderly tenant, from the community.
Both examples present exactly the type of problem that the documentation, proposed by Professor Caruso, aims to resolve. When faced with a request to allow an additional occupant in a resident's unit, you should require the family member to fill out paperwork, which provides full details about the occupant and his relationship with the resident, requires him to abide by community rules, and acknowledges the community's authority to take action against him—while preserving the resident's tenancy.
While it's best to get legal help, having such paperwork in hand at the outset will help resolve such thorny problems most effectively.
Rule #6: Be on the Lookout for Unauthorized Occupants
So far, we've discussed multigenerational families who either apply to live in the community—or current residents who ask permission to allow family members to move into their units as additional occupants.
But let's face it—not everyone does things by the book. In some cases, procedures for adding occupants may be overlooked when sudden circumstances prompt relatives to move in with residents. With high rates of unemployment and continuing foreclosures, people are turning to their families for housing—often without much notice—to avoid homelessness. Or, a woman and her children fleeing from domestic violence may run for shelter at her mother's apartment.
Nevertheless, some people simply flout the rules and try to get away with relatives and others moving into their units without notifying the management. According to security experts, relatives or acquaintances of residents who move in without management's knowledge can be a source of crime problems in the community. Moreover, the community could face potential liability for damages if an unauthorized occupant hurts someone—and the community knew about his presence but did nothing about it.
Having a guest policy can help to discourage unauthorized occupants by limiting the number of guests that residents may have—and the amount of time that guests can stay at the community. Most guest policies require residents to get management approval if they want to stay longer than the amount of time set out in the guest policy.
Meanwhile, put policies in place to detect unauthorized occupants and to deal with them appropriately when they're discovered. If it's all above board, attempt to resolve the situation amicably by determining whether they're qualified to live at your community and their presence in the unit complies with your occupancy standards. If so, you may want to add them as parties to the lease—or authorize them to join the household by signing the appropriate paperwork to make them subject to community rules and authorizing you to remove them for violations.
Meanwhile, it may become necessary to take steps to get the unauthorized occupant to move. If a resident ignores warnings and violation notices, you may have to take steps to evict him for housing an unauthorized occupant. Documentation will be essential, not only to buttress your claims against the resident, but to protect your community in case anyone raises a fair housing claim in the process.
Fair Housing Act: 42 USC §3601 et seq.
F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 S. Plymouth Ct., Ste. CBA-800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu
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|February 2012 Coach's Quiz|