Don't Exclude Children Unless Community Qualifies as Senior Housing

August 22, 2012
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Think twice before marketing your community as an “Active Adult” or “Empty Nester” community. Even if your community has many older members or wants to appeal to a growing population of senior citizens, many of whom want to live in child-free environments, check with your attorney before instituting any age-restriction policies or marketing efforts.

Adult-only housing has been illegal since 1988, when federal fair housing law was amended to add familial status as a protected class. Although the amendment also added an exception for “housing for older persons,” many communities that want to exclude children seem unaware of the fact that they first must qualify for the exemption before they can legally restrict or limit the number of families with children under the age of 18 on their property. Only qualified communities may exclude minor children, impose age limits, or market themselves to attract older prospects. Otherwise, it’s unlawful to exclude or otherwise discriminate against buyers or renters with minor children.

Just recently, the U.S. Department of Housing and Urban Development (HUD) charged a Minnesota condo association and its management company with violating the Fair Housing Act (FHA) by discriminating against families with children under the age of 18. According to HUD’s charge, the condo association maintained a policy prohibiting families with children under 18 from living in the building. Allegedly, the association’s residency policy, which stated that “no apartment may be sold, leased, or rented to any person who has a child under the age of 18,” prevented a condo owner from renting the unit to several families with children, including a couple on whose behalf the HUD charge was issued. The HUD charge will be heard by an administrative law judge unless one of the parties elects to have the case heard in federal district court.

“Condo associations that don’t meet federal requirements as housing for older persons don’t have the right to turn away families with children,” John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to take action against homeowners associations that violate the Fair Housing Act by imposing restrictive residency policies” [Secretary, HUD v. Greenbrier Village Condo Three Association, Inc., July 2012].