
In 1988, Congress added “familial status” – defined to include those family groups with children under 18 – to the list of protected groups under the Fair Housing Act (“FHA”). Since that time, condominiums and homeowner’s associations have been discovering that their various rules regulating or prohibiting youngsters’ use of the association’s facilities may run afoul of this area of federal anti-discrimination law. Rules once considered common — that is, rules which employ a specific age to regulate minor residents’ use of the pool, gym, or other areas — can result in legal action against the association. To accommodate FHA guidelines and remain enforceable, such restrictions should be re-crafted by legal counsel to specifically address an identifiable concern related to the specific activity, rather than prohibiting its use by a specific age group. However, this protection against age discrimination does not apply in all cases.
When creating the FHA, Congress also included a provision exempting senior housing from this prohibition against familial status discrimination. When HOPA (the “Housing for Older Persons Act”) was implemented in 1995, this exemption was extended to a newer and broader category of housing: occupancy by at least one person 55 or older per residence, in at least 80% of the properties. Currently, any properly created 55+ community may treat families with children differently from their senior residents, and they may create restrictions or regulations (including age-specific restrictions) which apply only to those residents under 18, as long as those rules do not violate any other state or local law.
For example, communities for housing for older persons may establish age-based restrictions such as the following: (a) limit children under 16 to using the community pool on only certain day, or times; (b) require an adult to accompany children under 18 in the clubhouse, or (c) prohibit anyone under 15 from using, or entering, the community gym. As a result of the HOPA exemption, the 55+ communities retain and may apply age and familial-status restrictions which non 55+ community associations are prohibited from enacting.