The Fair Housing Act Amendments and Age Restrictive Covenants in Condominiums and Cooperatives

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Residential associations in condominiums and cooperatives have been described as "mini-government[s],"' "residential private governments,"2 and even as "quasi-government[s]- '. . . little democratic sub societ[ies] of necessity.' "3 These descriptions are due in part to the associations' broad powers over structural changes,4 as well as the ability to regulate the lives of both its members and prospective purchasers.5 Various covenants included within the by-laws or the lease enable these associations to determine who may be future members and exclude those they find undesirable. It has long been recognized that cooperative and condominium owners should, absent discrimination, decide for themselves whom they choose to live near and share their responsibilities.6 These restrictive covenants ensure that a prospective purchaser is compatible with the other members, as well as with the objective character of the community, e.g., adults only.7 However, these covenants have established a broad reach because housing discrimination has always been difficult to prove.8

One of the more controversial covenants is the age restrictive covenant.9 Although age discrimination exists when a family is rejected from a condominium or cooperative because of its children,lo this restriction had survived numerous attacks on its validity.ll This resulted from society's failure to attach any "moral stigma" to housing discrimination against children.l2

In 1988, Congress finally amended the Fair Housing Act ("FHA") to include protection against housing discrimination to those with familial status. With its passage, adult-only communities are prohibited, unless they qualify as housing for older persons. This Note will focus on the Fair Housing Act Amendments ("FHAA") of 1988 and 1995 and how they apply to cooperatives and condominiums with respect to discrimination against families with children. Part I will discuss the FHAA of 1988 and 1995 and the history of the exemption provided for communities qualifying as "housing for older persons." Part II will analyze the broad application of the FHAA to condominiums and cooperatives. Finally, Part III will briefly offer some reasons why senior-housing communities should be allowed to enforce restrictive covenants against families with children.

I. THE FAIR HOUSING ACT AMENDMENTS OF 1988 AND 1995

The FHA originally was enacted in 1968 to provide for protection against discrimination based upon race, color, religion, or national origin.l3 The FHA, also known as Title VII of the Civil Rights Act, was amended in 1974 to include sex discrimination"4 and, in 1988, its scope was further expanded to protect both the disabled and persons with familial status.ls

Prior to the FHAA, neither the states nor the federal government provided effective relief to condominium and cooperative applicants who were being rejected because they had children.16 Although sixteen states recognized that families with children were being denied housing, the state laws were not effective remedies.l7 For example, before the FHAA, an age restrictive covenant allowed a condominium association to seek the eviction of a family with a nine-year old child.ls

"Familial status" under the FHAA extends protection to those persons under the age of eighteen who are domiciled with a parent, legal custodian or someone designated by them.l9 It also extends to pregnant women and those in the process of securing legal custody of a child less than eighteen years of age20The FHAA does not provide protection against housing discrimination based upon any age, but only against families with children.21

"Discrimination is particularly tragic when it means a family is refused housing near good schools, a good job, or simply in a better neighborhood to raise children."22 Congress recognized that the United States has a policy of protecting children and families by noting that families are " `perhaps the most fundamental social institution of our society. …