Condominiums, homeowner associations, and cooperatives (“Associations”) offer a myriad of services and amenities – such as, swimming pools, fitness centers, and tot lots – to owners and residents living within their communities. Associations, therefore, are considered housing providers and must comply with the Federal Fair Housing Act (FHA), Title VII of the Civil Rights Act of 1968, as amended. The FHA prohibits housing discrimination in the availability and enjoyment of housing and housing-related services, facilities, and transactions based upon an individual’s race, color, religion, sex, national origin, familial status, and mental or physical disabilities. These aforementioned protected classes are for the most part self-explanatory, except for one: familial status. What exactly is meant by familial status?
Familial status refers to the makeup of a family unit, and under the FHA, this includes children under the age of 18 who are living with their parents or legal guardians. The FHA provides that it is illegal for housing providers to discriminate in the terms, conditions, and privileges of a dwelling because of familial status. Further, the regulations promulgated by the Department of Housing and Urban Development (HUD) to enforce the FHA make clear that limiting the use of privileges and facilities, such as Association amenities, due to familial status is a violation of the FHA.
With some rare exceptions, most courts across the United States have found that age-based restrictions on Association amenities are a violation of the FHA. Examples include a community rule restricting children under the age of 18 from using a pool without adult supervision, a community pool that designated an adult swim period, a community that banned children from using a spa, a community that banned the use of playground facilities by anyone not between the school grades of kindergarten and sixth grade, and a community that restricted minors’ use of a club house without adult supervision.
What about the concept of protecting children from injury? Associations attempt to defend rules prohibiting minors from using community amenities by asserting legitimate goals of protecting residents’ safety, preventing property damage, and disturbing other residents. Courts, in striking down such restrictions, highlight the example where it would be objectively preferable for a quiet, skilled, seventeen-year-old resident to use the gym facilities instead of a loud, disruptive, and reckless twenty-five year old, which the rule banning minors would not control. Similarly, a ten year old may be a very competent swimmer, whereas an adult may not know how to swim.
To stay away from FHA claims of discrimination based on familial status, it is best, whenever possible, to have rules as age neutral as possible. Instead of having adult swim period, Associations can avoid liability by having a designated period for lap swim. Anyone can be in the pool as long as they swim laps. Similarly, rather than a rule banning children from playing in the Association’s parking lot, a rule could state that no one can play in the parking lot.
If an Association is found in violation of the FHA, its board and manager can be sanctioned, fined, and required to take FHA training and perform community service. Therefore, it is important to be proactive in this area and not wait to act if a resident complains. If your Association has not done so recently, take a moment to review your Association’s rules to ensure that they comport with the FHA and do not discriminate based on familial status.
For more information, contact the Davis, Agnor, Rapaport & Skalny attorney with whom you typically work, or one in our Community Associations Practice Group.
