How the Fair Housing Act Affects Common Interest Community Associations

As the number of individuals living in common interest community associations has sky-rocketed in recent years, many of these associations have enacted rules and regulations that prohibit or restrict activities based on age. In many cases, these rules attempt to regulate when and where children can play and participate in activities within the common interest community. However, what you may not know is that many of these rules can be illegal – and therefore unenforceable – under the federal Fair Housing Act.

The Fair Housing Act, 42 U.S.C. § 3601 et seq., prohibits discrimination in housing and makes it illegal to refuse to provide housing or housing-related services based on numerous classes, including race or color, national origin, religion, sex, handicap, and familial status. As amended, the Act is applicable to common interest community associations, condominiums and townhouses, as well as garden apartments, multi-family dwellings and dormitories. The penalties for violations of the Act can be severe; up to $1,000.00 or a period of incarceration for one year. If bodily injury results from the violation, the penalty could increase to up to $10,000.00 and incarceration for up to ten years.

Pursuant to Section 3602(k) of the Fair Housing Act, “familial status” is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with: (1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.” As such, rules that seek to prohibit children from participating in certain activities within the common interest community may be prohibited by the Act. For example, a rule that says that children under the age of 13 are not permitted to swim at the community pool without an adult may be in violation of the Act, and, as such, unenforceable. Other examples of rules that may violate the act include: (1) prohibiting children under the age of 13 from the clubhouse, weight room or other common elements and facilities at certain times; and (2) allowing only adults to swim in the community pool during certain hours. Ultimately, under the Fair Housing Act, an association cannot prohibit the actions of an entire class of people unless a showing is made that the reason for such prohibition is the health or safety of those particular people.

Related to question of prohibitions based on age is the legality to of age restricted communities and 55 and over communities. The answer is that Fair Housing Act, Section 3607, provides an exemption for these types of communities, making them legal if certain criteria are met. For age restricted communities” to qualify under this exemption, they must have 80% of their units occupied by at least one person whom is over 55, , the common interest community associations must publish and strictly adhere to policies and procedures that demonstrate the intent required under Section 3607 (i.e., intent to restrict housing to individuals over age 55), and the communities must comply with the rules issued by the federal and state officials for verification of occupancy.

While the Fair Housing Act provides that not all age-based rules will be considered illegal, common interest community associations wishing to impose such restrictions must assure that any restriction based on age is based on health or safety concerns of the individuals. If your association has such restrictions, it is important to consult your management company and/or legal counsel to ensure compliance with the Fair Housing Act, and to avoid potential violations, fines and/or other legal action.