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As the number of individuals living in community associations has sky-rocketed in recent years, many of these associations have enacted rules and regulations that prohibit or restrict activities based on age. In many cases, these rules attempt to regulate when and where children can play and participate in activities within the community. However, what you may not know is that many of these rules can be illegal – and therefore unenforceable – under the federal Fair Housing Act.

The Fair Housing Act, 42 U.S.C. § 3601 et seq., prohibits discrimination in housing and makes it illegal to refuse to provide housing or housing-related services based on numerous classes, including race or color, national origin, religion, sex, handicap, and familial status. As amended, the Act is applicable to condominium associations and townhouses, as well as garden apartments, multi-family dwellings and dormitories. The penalties for violations of the Act can be severe; up to $1,000.00 or a period of incarceration for one (1) year, or, if bodily injury results from the violation, the penalty could increase to up to $10,000.00 and incarceration for up to ten (10) years.

Pursuant to Section 3602(k) of the Fair Housing Act, “familial status” is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with: (1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.” As such, rules that seek to prohibit children from participating in certain activities within the community may be prohibited by the Act. For example, a rule that says that children under the age of thirteen (13) are not permitted to swim at the community pool without an adult may be in violation of the Act, and, as such, unenforceable. Other examples of rules that may violate the act include: (1) prohibiting children under the age of thirteen (13) from the clubhouse, weight room or other facilities at certain times; and (2) allowing only adults to swim in the community pool during certain hours. Ultimately, under the Fair Housing Act, an association cannot prohibit the actions of an entire class of people unless a showing is made that the reason for such prohibition is the health or safety of those particular people.

Related to question of prohibitions based on age is the legality to of “age-restricted active adult (55 years and older) communities”. The answer is that Fair Housing Act, Section 3607, provides an exemption for these types of communities, making them legal if certain criteria are met. For an “age-restricted community” to qualify under this exemption, it must have eighty (80%) percent of its units occupied by at least one person whom is fifty five (55) years or older, the community must publish and strictly adhere to policies and procedures that demonstrate the intent required under Section 3607 (i.e., intent to restrict housing to individuals over age 55), and the community must comply with the rules issued by the federal and state officials for verification of occupancy.

While the Fair Housing Act provides that not all age-based rules will be considered illegal, community associations wishing to impose such restrictions must assure that any restriction based on age is based on health or safety concerns of the individuals. If your association has such restrictions, it is important to consult your management company and/or legal counsel to ensure compliance with the Fair Housing Act, and to avoid potential violations, fines and/or other legal action.

Technorati Tags: New Jersey : Community Associations : Fair Housing Act

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Municipalities in New Jersey are taking action now more than ever to protect their residents – especially their children – Drug-Free School Zones, DNA identification programs for children, criminal background checks for youth athletic league coaches and now “Pedophile-Free Zones”. In May 2005, Hamilton Township, New Jersey passed a “Pedophile-Free Zones” Ordinance that may be the strongest in the nation. The Ordinance prohibits convicted sex offenders from living within 2,500 feet of where children congregate, such as schools, parks and playgrounds. In doing so, Hamilton Township followed the lead of towns and municipalities in over fourteen other states, and potentially many more. Can it be that far off that community associations will employ similar methods to protect its members – especially its youngest and most vulnerable?

In fact, some already have. In Mulligan v. Panther Valley Property Owners Ass’n, 337 N.J. Super. 293 (App. Div. 2001), the New Jersey Appellate Division addressed the issue of whether a condominium association could ban all “Tier 3” offenders – the highest level sex offenders in New Jersey – under “Megan’s Law”, N.J.S.A. 2C:7-8(c)(3). The Trial Court upheld the association’s amendment precluding such individuals from residing withing the community. While the Appellate Division did reject Mulligan’s argument that such a restriction unlawfully infringed on her right to sell or lease her property, ultimately the Court refused to address the validity of this amendment due to an insufficient record. However, the Appellate Division left two issues unanswered – which are now before the New Jersey Supreme Court in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association (discussed recently in several blogs on this site) – namely: (1) whether community associations perform “quasi-municipal” functions and must be considered “quasi-municipalities”; and (2) whether the Court must analyze amendments to associations’ governing documents based on the “business judgment rule” or based on a higher, constitutional standard. Ultimately, the constitutionality of such “Pedophile-Free Zones” in community associations may turn on the Supreme Court’s decision in Twin Rivers.

Critics of “Pedophile-Free Zones” and “Pedophile-Free Associations” argue that such restrictions are unconstitutional, stating that towns and associations are essentially making it impossible for offenders to live legally in most urban communities, which have a multitude of schools, parks and playgrounds. Moreover, once in place, these restrictions may prove expensive and difficult – if not impossible – for a community to enforce. The basis of the restriction is evident – protection and safety. However, does it provide a false sense of security? As critics have pointed out, banning the most serious of sex offenders from owning or living in your community does not preclude a sexual predator from entering your community. Many communities have shared facilities, such as clubhouses, pools and exercise facilities, and other individuals such as maintenance contractors and deliverymen have access to the community and children on a daily basis. Moreover, these concerns over protection and safety may not be strong enough to outweigh the constitutional challenges such restrictions may soon face. Convicted sex offenders – through legislation – lose certain constitutional rights, including the right to vote or the right to bear firearms. Whether these additional restrictions would violate the constitutional rights of an individual to own property as well as other rights remains to be seen.

Technorati Tags:  New Jersey : Community Association

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