Prohibitions Against Familial Discrimination Under the Fair Housing Act

By Lane V. Erickson, Attorney

It is unfortunate but true that landlords often aren’t familiar with their responsibilities when it comes to renting to families with children. Many times, landlords don’t even know that families with children enjoy a protected status under federal housing discrimination laws. In addition to the protections against standard discrimination the federal Fair Housing Act (FHA) also protects the familial relationship. In other words, the FHA protects persons from being discriminated against because they are members in a family.

Unless a building or community qualifies as housing for older persons (is occupied by persons aged 62 or older or has received such designation from the HUD Secretary) a landlord may not discriminate against a potential tenant based on familial status. Essentially, a landlord may not deny housing to a family in which is comprised in part of one or more children who are under 18 and who live with:

  • A parent;
  • A person who has legal custody of the child or children; or
  • The designee of the parent or legal custodian, with the parent or custodian’s written permission.


Familial status protection also applies to women who are pregnant and/or anyone securing legal custody of a child under 18.

There is a specific circumstance in which the FHA does allow landlords to either reject applicants because they have children or at least treat families with children differently and not be in violation of the FHA. This circumstance is:


The FHA creates a specific exemption or exception to the ban against familial status discrimination that allows landlords to rent their apartments to only senior citizens. This exception is allowed because in order to restrict occupancy of some or all of an apartments to people above a certain age, you must be able to turn away families with children without worrying about violating the law.

In order to qualify for the “senior housing” exception, the landlord must prove that its housing is: (1) provided under any state or federal program that HUD has certified to be specifically designed and operated to assist elderly persons; or (2) intended for, and solely occupied by persons 62 years of age or older; or (3) intended and operated for occupancy by persons 55 years of age or older.  To qualify for the “55 and older” housing exemption, a landlord must also satisfy the requirements that:

(a) at least 80 percent of the units must have at least one occupant who is at least 55 years old; and

(b) the community must publish and adhere to policies that demonstrate the intent of the property to operate as a “55 and older” community; and

(c) the property must comply with HUD’s regulatory requirements for age verification of its residents.

When these qualifications are met, the exemption applies and the landlord will not be in violation of the FHA, even when he denies housing to families.

If you are a landlord, or a tenant and you have questions about the familial relationship and the protections offered by the FHA, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Landlord and Tenant Law and Real Estate attorneys in Idaho. You can also email Lane Erickson directly at We will answer your Idaho Landlord and Tenant Law and Real Estate questions and will help you solve your Idaho Landlord and Tenant Law and Real Estate needs.

This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer for advice on specific legal issues.

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