New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

The Fair Housing Act (the "FHA") makes it illegal to discriminate against any person in the provision of housing-related services and facilities based on familial status. "Familial Status" is defined by the FHA as one or more persons who have not attained the age of 18 who live with a parent or legal guardian. Community Associations are subject to the requirements of the FHA and accordingly must be careful not to discriminate against persons 18 or younger with regard to services or community amenities offered by the Association. Mindful of this, Boards ought to be wary of placing restrictions on pool use based on age. Some common violations include age-based swim tests, adult supervision requirements, adult only swim times and greater restriction on guest allowances for junior members.


Courts across the country routinely strike down rules which require a swim test for only individuals who fall within a certain age group. The court’s rationale is that swimming capabilities have no reasonable connection with age. A 13 year old certainly may be able to swim better than an 18 year old. Unless the Association wishes to test everyone, it cannot restrict swim testing to a certain age group.


Although most courts would agree that adult supervision is viewed as a reasonable and necessary health and safety restriction for children under 12 years, courts have found required adult supervision for children who are 13 years or older as unreasonable and thus in violation of the FHA.


Similarly, many communities wish to enact a rule that allows for "adult only" swim time. However, without a reasonable basis that such a restriction is necessary for health and safety reasons, courts will likely strike such a rule. A better option might be to enact a regulation that allows for time where only swimming laps is permitted. Most often the reason for wanting adult swim time is to offer time in the pool where adults can swim laps without interference. The "lap only" restriction would accommodate this desire, yet not unreasonably discriminate against minors.


Lastly, Boards should be wary of enacting a policy that places greater restrictions on guest attendance for "junior" members. A guest policy should be uniform for all members as to avoid a violation of the FHA.


If you wish to further discuss the FHA and/or any of the restrictions noted above, please contact Megan Christensen at Stark & Stark in the Community Associations Group at (609) 896-9060 or mchristensen@stark-stark.com.

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    Statute §3407 of the Pennsylvania Condominium Act (the “Act”) provides that a contract for the resale of a condominium unit by someone other than the developer is unenforceable unless the unit owner furnishes certain information and documents.  Accordingly, under §3407(17)(a) when requested, the Association must furnish a Certificate containing the information and supplying the documents necessary to enable the unit to comply with his obligations. 

    Thus, unlike its neighboring state, Pennsylvania requires actual participation by the Association when it comes to the resale of a condominium unit.  However, it is key for an Association to be mindful that such participation should remain limited to the confines of the Act.  Far too often the author of the 3407 Certificate, acting on behalf of the Association, subjects the Association to undue liability by making statements that go beyond its responsibility pursuant to the Act.  

    For example, the Act requires the Association to verify the amount of monthly common expenses, any unpaid common expenses or any unpaid special assessment currently due from the selling owner.  Mindful of the limiting language of currently due, the Association should be wary not to include information on the Certificate with regard to the possibility of a future increase in the monthly assessment or a future special assessment.  While it may seem at the time as a good faith gesture, in the end it only creates confusion amongst the seller and buyer as to whom shall be responsible for payment in the case that such possibility becomes a reality. 

    Moreover, an Association should avoid making certain ultra vires statements such as “the Association will not increase its common monthly assessment” or “the Association will not issue a special assessment for the next six months”.  Again, while the Association may truly have no intention of having to break such a “promise”, the Association cannot subject itself to the possibility of allowing such an over-reaching statement to prevent it from raising emergency funds when needed.

    Thus, with the above advice in mind we strongly encourage Associations to review their current 3407 policy and assure not only compliance but that same does not create undue liability for the Association or confusion amongst the parties.

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