Do Liveaboard Boaters Receive Fair Housing Law Protection?

We live aboard our boat in a marina in Southern California, and we recently received an eviction notice. The notice was actually described as a “Notice of Lease Termination,” but since we live aboard, it amounts to an eviction. The notice provided no reason for the eviction, but we believe that we are being discriminated against because our two small children live aboard with us. We have contacted two attorneys, but we have received two different opinions about our legal rights. The first attorney said that we were protected against this type of discrimination by various fair housing laws, but the other attorney advised that we are not protected by those laws because a slip tenancy is interpreted under federal maritime law. Can you shed some light on this?

A slip tenancy is indeed interpreted under maritime law principles, but the question of whether a tenant may be protected by federal or state fair housing law is a lot more complicated than simply deferring to maritime law.

When a state law and a federal law seem to address the same question, the federal law will be deemed to “preempt” the state law if the language of both statutes refers to the same thing, or if that particular area of federal law is so comprehensive that it is deemed to fully occupy the field.

In this case, federal maritime law does cover a lot of issues dealing with a slip tenancy. For example, maritime law provides that a slip tenancy will give rise to a maritime lien against the vessel, it provides a procedure for the foreclosure of the maritime lien and the sale of the vessel, and it provides a system for prioritizing the liens of competing creditors if the claims against the vessel exceed the value of the vessel.

We have discussed maritime lien foreclosure procedures in various installments of this column over the years (for example, “Ask A Maritime Attorney – Foreclosing on Lien Not Necessarily Worth the Cost,” The Log, Dec. 14, 2006).

Lien foreclosure involves a lengthy – and expensive – procedure that begins with the filing of a lawsuit in federal court. If a marina wishes to avoid this expensive procedure, there is no provision of federal maritime law in the United States that deals with a simple eviction of a boat from a slip, so the marina must resort to various eviction tools that are available under state law. Under these circumstances, federal maritime law will probably not be deemed to preempt state law.

Unfortunately for our reader, the fact that he is free from the cumbersome limitations of maritime law does not automatically allow him to benefit from the protections of state – or federal – fair housing laws.

When interpreting any law, the first analytical step must be the determination of the scope of the law. Who is the law intended to protect?

The California Fair Employment and Housing Act extends its protections (pursuant to California Government Code sec. 12927) to people who live in “housing accommodations.” A housing accommodation is defined as “any building, structure or portion thereof that is occupied as, or intended for occupancy as, a residence …” Notably, the federal Fair Housing Act (pursuant to its definition of “dwelling” in 42 U.S. Code sec. §3602) uses the same definition to describe the scope of its protection.

State and federal fair housing laws do indeed prohibit discrimination in housing for various reasons, but as noted above, a tenant must be living in a building or structure to be protected under those laws. Various court decisions have, in fact, included boats within the definition of a building or structure — so, if our reader was living aboard a rented boat, he may, in fact, be protected by fair housing laws. But he is not living aboard a rented boat — and that is not the typical scenario we face with a marina eviction.

Liveaboard marina tenants usually own their boat and, as such, they own the “structure” in which they are living. Since a marina tenancy basically concerns a parking space rather than a dwelling, boat owners are not protected by federal or state fair housing laws, regardless of whether federal maritime law applies to the tenancy.

The only real protection available to liveaboard marina tenants in California is the Floating Home Residency Law. This law does offer some protection to marina tenants, but only if the boat qualifies as a floating home under the definitions set forth in the law. Among other very strict requirements, a “floating home” must have a permanent shoreside sewer connection and continuous water and power service. This means that it must have pipes and permanent electrical power rather than hoses and a plug-in shorepower cord.

At the risk of sounding unsympathetic to our reader and others in the same situation, state and federal law assume that people who live aboard a boat do so as a matter of choice rather than necessity and, as such, liveaboards are not afforded the same protections as people who live in more traditional spaces. With that said, no two cases are the same, and anyone who is facing eviction should seek independent legal advice.