The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (which has been amended and expanded over the years), prohibits discrimination in housing on the basis of race, color, national origin, religion, sex, familial status, and disability. There are also various state and local regulations that address housing discrimination. While most community associations are aware of and avoid discriminatory housing practices for most protected classes, some community associations struggle with balancing how to steer clear of discrimination on the basis of “familial status” while still addressing common concerns and issues that children can create in a community. The first part of this article addresses communities that are NOT Housing for Older Persons (meaning not 55 and older) communities while 55 years of age and older communities are addressed toward the end.
Discrimination on the basis of “familial status” includes discrimination against children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18. In addition to prohibiting familial status discrimination as to occupancy of a dwelling, the Fair Housing Act’s familial status discrimination prohibition extends to the use of the association’s recreational facilities, including for example, the community clubhouse, swimming pool, hot tub, and fitness center.
NOT 55 AND OVER COMMUNITIES
In United States of America v. Plaza Mobile Estates, et al., 273 F. Supp. 2d 1084 (U.S.D.C. 2003), the court held that several association rules which prohibited or restricted the use of recreational facilities, including the clubhouse, billiard room, tennis courts, laundry room, swimming pool, sauna, jacuzzi, and sun deck, by children were discriminatory and violated the Fair Housing Act because they treated children, and thus families with children, differently and less favorably than adult-only households. These rules included prohibiting residents under the age of 14 from using the recreation facilities without the accompaniment of an adult resident, prohibiting entry into the billiard room by anyone under the age of 18, requiring that anyone under 14 years of age riding a bicycle be accompanied by a responsible adult, and requiring guests under 18 years of age be accompanied by a responsible adult. A similar conclusion was reached by the court in Iniestra v. Cliff Warren Investments, Inc., 886 F.Supp.2d 1161 (C.D.Cal.2012), in which it found that the following four association policies were facially discriminatory: (i) prohibiting children under the age of 18 from being in the pool or pool area at any time unless accompanied by their parents or legal guardian; (ii) requiring children on the premises to be supervised by a responsible adult at all times; (iii) requiring children under seven to be supervised; and (iv) requiring adult supervision for children under 10 years old.
Therefore, it is clear that community associations should avoid adopting rules and regulations which unreasonably prohibit or restrict the use of their recreational facilities or other common areas on the basis of age. The above cases provide insight as to what may be considered unreasonable. However, these cases do not completely eviscerate the authority of a community association to adopt reasonable rules and regulations governing the use of its recreational facilities and other common areas. This merely requires the community association to alter its perspective on the rules and regulations being adopted. Instead of focusing only on the age of the individual, focus on the underlying activity that the community association would like to regulate or prohibit. For example, if the concern is the safety of children at the community swimming pool, the community association could consider adopting a rule requiring that anyone who is not a competent swimmer be supervised by a competent swimmer at all times while in the pool and pool area.
If the association is going to prohibit use of amenities and such based on age alone, consider including a mechanism for relief from the rule within the rule itself. For example, what if the association has a rule, “No children under the age of 12 may be in the pool without adult supervision”? What if an 11-year-old is already a proficient swimmer and is on a swim team? Therefore, consider adding to the rule that “if an exception to the rule is necessary, please make application to the board to do so.” In other words, do not make the rule inflexible, but rather provide exceptions to the rule under the right circumstances.
Although the Fair Housing Act prohibits discrimination in housing on the basis of familial status, there is an exception to this prohibition under the federal Housing for Older Persons Act adopted in 1995 (“HOPA”). Under the HOPA, housing providers, including community associations, are exempt from liability for familial status discrimination so long as certain requirements are met and maintained. Although there are three types of housing for older persons’ exemptions, the most common exemption is housing intended and operated for occupancy by persons 55 years of age or older, which enables the association to prohibit persons under the age of 18 from being permanent residents.
55 AND OVER COMMUNITIES
To qualify as “housing for older persons” (often called “55+ housing”), a community association must meet the following criteria: (i) ensure that at least 80 percent of the homes have at least one permanent resident who is 55 years of age or older; (ii) publish and adhere to policies and procedures that demonstrate an intent to provide housing for older persons (55+); and (iii) conduct a census/survey every two years to obtain reliable age documentation of the residents to verify the occupancy of the homes.
If a community association is properly maintained as “housing for older persons,” then the community association may adopt age-based restrictions concerning the use of its recreational facilities and other common areas because it is exempt from enforcement of familial status housing discrimination. For example, a community association that qualifies as housing for older persons may limit children’s use of the community swimming pool to certain days or times and may require an adult to accompany children while in the clubhouse or prohibit children from using the community fitness center. As a result of the HOPA exemption, a community association that qualifies as housing for older persons may adopt age-based restrictions which community associations for all ages are prohibited from promulgating. Of course, no community association is exempt from the laws that prohibit discrimination based on any other protected class, such as race, religion, national origin, disability, etc.
While community associations that qualify as housing for older persons are exempt from the Federal Fair Housing Act’s provisions regarding familial status, these community associations must also be mindful of local laws and ordinances that may also prohibit discrimination based on age before adopting age-based restrictions. For example, the fair housing laws of Palm Beach County provide that “[h]ousing for older persons may also maintain only those age restrictions necessary in order to be designated as housing for older persons.” Therefore, a community association should contact its attorney before establishing rules, regulations, or restrictions based on age.