Are Those Under Age 18 a Protected Class?

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 various rules regulating or prohibiting use of the association’s facilities by persons under 18 years of age may be prohibited by this federal law. Rules once considered common and reasonable, 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 on behalf of owners with children under 18. To accommodate FHA guidelines and remain enforceable, such restrictions within a community association must be re-crafted to specifically address an identifiable concern related to the specific use — which applies to everyone — and in most cases without reference to a specific age.

In 1995, Congress also included a provision exempting Housing for Older Persons communities from familial status discrimination. One criterion to be a Housing for Older Persons community is that at least 80% of the occupied units must be occupied by at least one person 55 years of age or older. Currently, any community which meets the various criteria to be considered a Housing for Older Persons community may create restrictions or regulations which apply only to those residents under 18, as long as those rules do not violate any other state or local law.

Therefore, while restrictions for those under 18 years of age are enforceable in Housing for Older Persons communities, those community associations which are not Housing for Older Persons must draft their rules in such a way so as not to unfairly restrict residents based on being under the age of 18.

Note that “age” discrimination and “familial status” discrimination are two separate protected classes. If age is a protected class in your county, you should have your community association attorney review your rules and regulations even if you are a Housing for Older Persons Community.