What About the Children? HOA Age Restrictions and FHA Proscriptions

Restrictive covenants in homeowners’ associations are not unusual—nearly every community has them.  For homeowners, the restrictions are something of a trade-off.  You accept a limitation on how you can use your property because, if everyone else in the community does, too, the neighborhood as a whole will be better off.  ‘If we all agree to keep our yards well-maintained and our houses painted nice-looking colors, we all benefit from a more attractive neighborhood with higher property values.’

Courts view HOA restrictions along the same lines as any contract and presume the restrictions are enforceable unless there’s a specific reason why the restriction should not be enforced.  A California court ruled that validly enacted restrictive covenants should be enforced “unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents, or violates a fundamental public policy.” Nahrstedt v. Lakeside Village Condo. Ass’n., 8 Cal. 4th 361, 386 (1994) (emphasis added).

As it turns out, though, “fundamental public policies” are more common than you might think.  Legislatures often recognize fundamental public policies when enacting statutes.  So, an HOA covenant that conflicts with a statute may violate a fundamental public policy, and a reviewing court may therefore refuse to enforce it.  In fact, HOAs not only cannot enforce covenants that are contrary to a statute, but the very attempt to enforce such a covenant can result in significant liability for the association.

Many an unwary HOA board has run into precisely this problem with regard to age-related restrictions and the Fair Housing Act (“FHA”).  Although a restriction related to residents’ ages might seem completely reasonable—and might promote a legitimate purpose in the community—covenants that effectively discriminate based on age very often run afoul of the FHA.  And that can land an association in legal hot water.

What is an Age-Restrictive Covenant?

In the most literal sense, a covenant is “age-restrictive” if it limits the access or use rights of residents or potential residents based on their age.  Less obviously, a covenant can be age-restrictive if it has the ultimate effect of limiting the use and enjoyment of property based on someone’s age, even if age isn’t specifically mentioned.  So, if I require all residents of my apartment complex to have a driver’s license, I am probably imposing an age-based restriction.  Sure, there are adults without licenses, but the vast majority of people affected by the restriction will be children.

Of course, not all age restrictions are a problem.  If you own a bar and you limit access to people age 21 and over, you’ll be fine—at least when it comes to the age restriction.  In the context of housing, though, the FHA prohibits most age-based discrimination. And, for homeowners’ associations, that means age-restrictive covenants are a potentially serious problem.

What is the Fair Housing Act?

As originally passed in 1968, the Fair Housing Act, or “FHA,” 42 U.S.C. §§3601-3619, prohibited discrimination in housing based on race, color, national origin, or religion.  Subsequent amendments added “sex,” “disability,” and, in 1988, “familial status.”  42 U.S.C. §3604(a) and (b).  Under the language of the statute, a “housing provider” cannot engage in any conduct or maintain any policy that discriminates against a protected class “in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling.” 42 U.S.C. § 3604(f).

Like most civil rights laws, the FHA is construed broadly and can apply to individuals, entities, policies, and conduct that might not at first glance seem to fall within the verbatim scope of the statute.  When most people hear “housing provider,” for instance, they think of a landlord.  And that’s right as far as it goes.  But a homeowners’ association can also qualify as a “housing provider” if the HOA enforces community covenants that affect a resident or potential resident’s access or use of housing in the community.

In fact, HOAs have been one of the more common defendants in FHA suits and administrative complaints.  Those cases have frequently involved claims of discrimination based on “familial status,” which, as it turns out, often means age restrictions.

Familial Status Discrimination under the FHA.

A person’s familial status includes obvious attributes—like whether he or she is married, single, or divorced.  But it also extends to less obvious areas and has been construed as covering age in many cases.  Although “age” itself is not expressly identified as a protected class under the FHA, courts interpreting the statute have held that nearly any discrimination relating to age, including discrimination against children or families with children, amounts to familial status discrimination in violation of the FHA. See Iniestra v. Cliff Warren Investments, Inc., 886 F. Supp. 2d 1161, 1164 (C.D. Cal. 2012).  Familial status discrimination can also potentially include discrimination against pregnant women and families in the process of adopting children or becoming foster parents.  Gorski v. Troy, 929 F.2d 1183 (7th Cir. 1991).

As a result, and subject to a few exceptions noted below, most age-restricted housing violates the FHA.  Prior to the adoption of “familial status” as a protected class, “adults only” apartment buildings were fairly commonplace.  Since 1988, though, that sort of designation has for the most part become unlawful. 

The FHA’s prohibitions don’t just extend to discrimination against families with children generally but also to discrimination based on the number of children in a family.  A recent HUD complaint out of Idaho, for example, asserted that refusal to rent to a family because it had too many children violated the FHA.  In that case, a landlord who would not rent a house to a couple due to their having more than four children ended up paying a $15,000 fine to resolve the complaint.

“Familial Status” Discrimination and Homeowners Associations.

Based on the above, it’s apparent that a restrictive covenant banning children or requiring that they be housed off-site will violate the FHA (subject to the below exception). And a prohibition on renting to families with children is similarly troublesome. But discrimination under the FHA can include more than just not allowing someone in a community based on a protected status. If an HOA has a restriction that limits the use or enjoyment of a resident’s home or community facilities, and that policy or restriction relates to the resident’s or a family member’s age, the board needs to tread carefully because covenants that restrict access by children are among the most common “familial status” discrimination claims against HOAs.

Rules expressly limiting children’s access to common areas usually violate the FHA.  Housing Opportunities Project for Excellence, Inc. v. Key Colony No. 4 Condominium Assoc., 510 F. Supp. 2d 1003 (S.D. Fla. 2007).  Likewise, special requirements or conditions imposed on residents with children can lead to FHA liability for an association.  So, a provision charging higher assessments, use fees, or security deposits to homes with minor children would violate the law.  And a community cannot adopt rules requiring all families with minor children to live in one part of the development or section of a building. 24 C.F.R. §100.70(c)(4).

To mitigate potential liability, most associations avoid rules specifically mentioning children.  Instead of declaring, “children shall not run on the pool deck,” a rule might be phrased as “no running is permitted on the pool deck.”  This is a somewhat effective approach, but it’s not foolproof.  Under considerable Federal court precedent, FHA discrimination may be found even if a policy does not, on its face, directly target, or even mention, a protected class—if the policy has a “disparate impact” on a protected category. 

A “disparate impact” occurs when the consequence of a policy or action is that a protected class is disproportionately adversely affected.  So, even if an association has no intention of discriminating against families with children, if it enforces a policy that ultimately results in families with children having less access, the HOA may have FHA exposure.

Occupancy limits are a gray area.  Reasonable limitations on the number of people who can reside in a dwelling are generally acceptable if they serve a legitimate purpose, but an unreasonable limitation that seems intended to keep families out may be actionable.  Fair Housing Advocates v. City of Richmond Heights, 209 F.3d 626 (6th Cir. 2000); 24 C.F.R. Ch. 1, Subch A, App. 1, §100.10. 

Defenses to Familial Status Discrimination Claims.

Assuming an association meets the statutory definition of “housing provider” (which they typically do), and that a policy or conduct of the HOA does in fact adversely impact the access or enjoyment of housing based on familial status, the available defenses are fairly limited.

Once a plaintiff shows an association is treating residents or potential residents differently due to their familial status, the association can avoid liability if it can “establish that [the association’s] rules constitute a compelling business necessity and that [the HOA has] used the least restrictive means to achieve that end.” Fair Housing Council v. Ayres, 855 F. Supp. 315, 318–19 (C.D. Cal. 1994).  This is a very difficult standard to satisfy, modeled on the “strict scrutiny” employed by courts to evaluate government actions that potentially infringe fundamental Constitutional rights.  See Korematsu v. United States, 323 U.S. 214 (1944).  Even so, safety rules adversely affecting children can be acceptable under the right conditions.

A use restriction narrowly tailored to address genuine safety concerns might not violate the statute, even if it singles out children. For instance, HUD accepted as a defense to a familial status discrimination claim an apartment complex’s argument that its rule limiting pool access to children unless accompanied by a parent was necessary to protect the safety of residents.  HUD found the rule to be a reasonable means of addressing a legitimate safety concern.  Fernandez v. Kastes, Case No. 04-89-0350-1 (Jan. 9. 1990).

However, generalized concerns about safety will not excuse discrimination.  See HUD v. Edelstein, Fair Housing-Fair Lending 25,018 (Initial Decision and Order, Dec. 9, 1991) ("As a general rule, safety judgments are for informed parents to make, not landlords.").  Similarly, safety concerns over an elevator, stairs, balconies, and large windows were an insufficient defense to an FHA claim arising from a policy of restricting families with children to a building’s first floor.  HUD v. Rowland, HUDALJ 09-91-1200-1 (Nov. 5, 1991). 

Housing for Older Persons Act.

A few years after extending the FHA to “familial status,” Congress acknowledged that elders are sometimes better off living in a tranquil, quiet community away from families with boisterous young children.  For that reason, Congress codified a few exemptions to the FHA to facilitate communities for seniors.  Under the Housing for Older Persons Act, 42 U.S.C. §3607, passed in 1995, a community can restrict housing to older persons if it meets one of the three enumerated criteria.

If a community is authorized by a governmental program created for the purpose of meeting the housing or similar needs of seniors; if it only has residents at least 62 years of age by design; or if at least 80% of homes have an occupant age 55 or older and the community is intended as housing for seniors; there’s a good chance the community is exempt under the “Housing for Older Persons” exemption.  If a senior living community falls within the exemption, the “familial status” provision of the FHA does not apply to it, and the community may implement and enforce age-restrictive covenants and policies.

For the “55 or older” exemption to apply, the community must also have and enforce policies demonstrating an intent to function as housing for older residents—and the community must comply with the Department of Housing and Urban Development’s (“HUD”) age verification regulations. Managers of a community that uses this avenue for the senior living exemption must closely watch the composition of the community because, upon going below the 80% threshold, the exemption ceases.  

Importantly, if challenged, a community has the burden of proving that it falls within a claimed exemption.  So, for instance, a golf resort claiming the “55 or older” exemption would need to establish both that it maintains policies designed to serve seniors’ needs and that it actually makes an effort to carry out those policies.  A plaintiff challenging the exemption would have the opportunity to present evidence of uneven enforcement or that the true reason the community’s managers claim the exemption is not so that they can better serve seniors’ housing needs—they just don’t want kids around playing in the sand traps.

Assuming an “Housing for Older Persons” exemption applies, a community can use age restrictions and can refuse to rent or sell to families with children—or to anyone below age 55—without violating the FHA.  It’s worth emphasizing, though, that the “Housing for Older Persons” exemption only applies to familial status discrimination.  So, a senior living facility is not free to ban Quakers just because all of its residents are at least 62 years old.

Reasonable Accommodations for HOAs and Senior Living Facilities.

Notwithstanding a Housing for Older Persons exemption, senior communities (and HOAs generally) have an obligation under the FHA to allow access to housing to disabled persons and to avoid discrimination based on disability.  The FHA doesn’t just prohibit a refusal to sell or rent to someone with a physical or mental impairment; it also requires “reasonable accommodations” to allow disabled persons access to housing.  For a community that specializes in housing for elders, this can be an especially important issue.

DOJ guidelines define “reasonable accommodation” as a “change, exception, or adjustment to a rule, policy, practice, or service” needed for a disabled person to have “an equal opportunity to use and enjoy a dwelling.” See Joint Statement of HUD and Dept. of Justice, Reasonable Accommodations under the Fair Housing Act (2004).  As long as a requested modification is directly related to a disability, an association or senior community must honor the request unless “it would impose an undue financial and administrative burden … or it would fundamentally alter the nature of the [association’s] operations.” Warren v. Delvista Towers Condo. Assoc., 49 F.Supp. 3d 1082 (S.D. Fla. 2014).

An accommodation might be a waiver of a “no pets” policy to allow a blind resident’s service animal or special parking privileges for a resident who has difficulty walking or needs to be able to load a wheelchair into a vehicle.  As long as a requested accommodation is intended to facilitate the disabled person’s access and enjoyment of housing and does not impose an undue burden on the association, the association must allow it. 

Assistance animals can be of particular importance to disabled seniors.  According to HUD, an assistance animal is “an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.”  HUD FEO 2013-01, see also Fla. Stat. § 413.08(1)(d).  Along with dogs trained to assist individuals with blindness, hearing impairment, diabetes, and dementia (among other things), assistance animals can also include emotional support animals.  So, for instance, a condo association’s refusal to allow a PTSD suffering resident to keep his dog due to a restriction on pet size resulted in a significant award against the association.  Bhogaita v. Altamonte Heights Condominium Assn., 765 F.3d 1277 (11th Cir., 2014). 

Along the same lines, the FHA also requires “reasonable modifications” to allow disabled persons full enjoyment of housing.  A reasonable modification is a “structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises.” Joint Statement of HUD and Dept. of Justice, Reasonable Modifications under the Fair Housing Act (2008). The most frequently cited example of a reasonable modification is a ramp allowing wheelchair access, but a modification might also be necessary for anything from braille signage for a blind resident to improved ventilation for a resident with a respiratory ailment.

Homeowner Remedies.

A homeowner facing problems with an association relating to his or her age or familial status has a few potential avenues of recourse.  Depending on the situation, it is sometimes best to begin by simply approaching a member of the board of directors and discussing the problem.  You may find that the board is sympathetic. 

Generally speaking, HOA boards have a duty to uniformly and thoroughly enforce covenants because inconsistent enforcement can result in an effective waiver of the association’s right to enforce the covenant in the future.  See, Liebler v. Point Loma Tennis Club, 40 Cal. App. 4th 1600, 1610-11 (4th Dist. 1995); Prisco v. Forest Villas Condominium Apartments, Inc., 847 So 2d 1012 (Fla.App. Dist.4, 2003).  However, an association may have a protocol allowing for an exemption or temporary waiver under appropriate circumstances.  If so, formally requesting the exemption to the board or at a member meeting may resolve the problem.

If an individual covenant is the issue, nearly all associations and state HOA laws have mechanisms for amending an HOA’s declaration of covenants.  This might take some legwork—and you’ll need to follow the amendment procedure precisely—but if you can get enough fellow homeowners on board with the change, you may be able to take care of the problem through the democratic process.  Although amendments usually require approval by a super-majority of homeowners, you don’t necessarily need the support of board-members to make it happen.

If an association’s actions amount to discrimination under the FHA, more serious measures may be called for.  Under the statute, an aggrieved individual has the option of filing an administrative complaint with HUD or a civil suit in federal district court.  42 U.S.C. §§3610, 3613HUD has regional offices in all fifty states, so you don’t need to go to Washington to file a HUD complaint.  Awards in FHA cases can include actual and punitive damages, injunctive relief, and attorney’s fees and costs.  42 U.S.C. §3613(c). The statute of limitations for FHA claims is one year for administrative complaints and two years for private civil actions.  Id.

Most states also have fair housing laws that allow for civil suits in state court.  In some cases, a state court action may be more convenient, or state law may provide additional protections beyond what is granted by the FHA.  It is almost always a good idea to consult with an experienced attorney before taking any legal action, whether under the FHA or otherwise.