The Fair Housing Act (FHA) applies to “dwellings.” This raises the technical issue of what a dwelling is. The answer is not as simple as one may think.
The statute’s definition of a dwelling includes any building occupied or intended to be occupied as a residence and any vacant land sold or leased for the construction of such a building.
In addition to houses and apartments, the definition also includes mobile home parks, trailer courts, condominiums, cooperatives, and time-sharing properties.
A building or land intended for non-residential use is not covered.
What about temporary residences such as dormitories, homeless shelters, and extended care facilities? An early and influential decision in this area is United States v. Hughes Memorial Home, 396 F. Supp. 544 (W.D. VA. 1975). This was a private facility in VA that was established in 1922 to provide housing for orphans and other needy “white children of Virginia and North Carolina.” Because the home would not accept black children, the Department of Justice (DOJ) brought a fair housing suit. The Home argued that it was not a dwelling, and therefore not subject to the FHA.
Once admitted, a child was considered a permanent resident of the Home and the average length of stay was about four years. The children attended area schools during the day.
The court held that while the term “residence” is not defined in the statute, the term should be given its ordinary dictionary meaning, which was “a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit. The judge concluded, “the Home is far more than a place of temporary sojourn to the children who live there.” Because the children were in fact, “residents” of the Home, the Home was a “dwelling” subject to the FHA.
The basic principle established in this case is that in temporary residence cases, one must look at whether the occupants intend to remain in those residences for any substantial period of time. If occupancy is merely transient, as with most motel and hotel rooms, the property may be viewed as something less than a dwelling and would not be subject to the FHA.
Seasonal dwellings, where the residents reside for substantial periods and return to them day after day are also considered dwellings for FH purposes (see United States v. Columbus Country Club, 915 F.2nd 877 (3rd Circuit 1990).
How long a period of time is required to establish a residence as a “dwelling” under the FHA has not been definitively established, but it does not have to be long. In Lakeside Resort Enterprises, LP v. Board of Supervisors of Palmyra Township, 455 F.3d 154, 159-60 (3rd Cir. 2006, the court held that a proposed drug and alcohol treatment facility was a “dwelling” under the FHA because, its average stay of 14.8 days “satisfies (though barely)” the “place to return” factor.
HUD has endorsed the following multi-factor test for determining whether a facility that includes short-term residencies is covered by the FHA:
- Length of stay;
- Whether the rental rate for the unit will be calculated a daily, weekly, monthly, or yearly basis;
- Whether the terms and length of occupancy will be established through a lease or other written agreement;
- What amenities will be included inside the unit, including kitchen facilities;
- How the purpose of the property will be marketed to the public;
- Whether the resident possesses the right to return to the property; and
- Whether the resident has anywhere else to which to return.
The FHA covers nursing homes, retirement communities, college dormitories, boarding houses and residency hotels, housing for seasonal farm workers, and vacation homes, timeshares, and similar recreational properties.
Whether a homeless shelter is a residence depends on circumstances, and prisons are “detention facilities,” – not “residences.”
For most owners and managers of multifamily housing, defining a dwelling is simply an intellectual exercise. However, in the LIHTC field especially, many specialized types of housing (e.g., homeless) are being developed. In such cases, a full understanding of whether the particular property is considered a dwelling for purposes of the FHA is required. If an owner is in doubt as to how the definition may apply to their specific circumstances, legal counsel should be sought.