This is a reprint of an article from a BackerReport article concerning the effect of age discrimination language in a communities' governing documents. Recently, we have seen a rash of instances where clients have been targeted by organizations which pursue community associations for damages because of technical non-compliance with The Fair Housing Act even where the associations are not enforcing the age restrictions. In light of the fact that the problem still presents itself rather regularly, we are running the previously published article again with some minor changes.

Many communities that were created prior to the effective date of the 1989 amendments to the Fair Housing Act have restrictive covenants contained in either their Declarations of Condominium or in their Declaration of Covenants and Restrictions which state limitations upon the ages of those permitted to reside in the community. As many readers of BackerReport are aware, the 1989 amendments to the Fair Housing Act imposed significant obstacles to those communities that desired to remain retirement communities with age restrictions.

The Fair Housing Act amendments prohibited the enforcement of age restrictions in those communities that did not meet the specific statutory exceptions to permit a community to be considered "housing for older persons." After the passage of the 1989 amendments, many communities that could not meet the requirements to be considered "housing for older persons" simply stopped enforcing their age limitations; the language in their declarations, however, remained. It is not sufficient to simply stop enforcing invalid age restrictions since the language in the documents alone could be construed to be a violation of the Fair Housing Act.

In a case from the appellate court that hears appeals from trial courts in Palm Beach and Broward Counties the court held that an association may be held liable for housing discrimination under the Fair Housing Act where it has age restrictions in its recorded covenants; the court held that the association could be liable even in instances where the Association is not enforcing the age restrictions. In Martin vs. Palm Beach Atlantic Association, Inc., Mr. Martin rented an apartment from a landlord that had obtained the condominium unit through foreclosure. Mr. Martin and his two young children moved into the apartment. He failed to pay rent and moved out of the apartment after receiving a notice of nonpayment from the landlord. Even though he was not denied housing by the condominium association and the association had no role in his being asked to vacate, Mr. Martin sued the condominium association alleging a violation of the Fair Housing Act.

Palm Beach Atlantic Association's "House Rules and Regulations" contained a prohibition against occupancy of units by adults with children under the age of twelve. It was established at trial that the Association was not enforcing these rules since the Association's management was aware that they were illegal under the Fair Housing Act. Even though it was not proven that Mr. Martin was discriminated against by the condominium association, the appellate court held that simply continuing to publish the unenforceable age restrictions constituted a violation of the Fair Housing Act. To establish a violation of the Fair Housing Act, it is merely necessary to prove that discriminatory rules are being published. The Court held that no showing of intent to discriminate is necessary to establish a violation of that Act.

The Fair Housing Act contains language that may impose damages against a party that is proven to have violated the Act even where the complainant has not suffered actual damages. It is also possible that the complainant may recover his attorney's fees in such an action.

For those communities that do not meet the criteria to be considered housing for older persons under the Fair Housing Act, yet continue to maintain governing documents that contain restrictions dictating a minimum age for residents, it would be prudent for the Association to pursue amendments to the governing documents to eliminate those discriminatory passages. Do not allow stale documents to create needless liability for your association. Be aware that there are organizations which have made it their mission to find communities with stale discriminatory language so that the associations may be targeted for claims for damages. It is far better to identify the language yourself and take appropriate steps to remove the language and avoid becoming prey to opportunistic tactics.

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