CRITICAL EXCEPTION
Sample Issue #1 of 19
Occupancy or amenity restriction discriminates based on familial status / disability or imposes an overbroad age restriction under the Fair Housing Act and HOPA.
Operative Clause · Sec. USE AND OCCUPANCY (Page 7)
“No children under fifteen ( 15) yem of age shall be permitted to reside In any of the uniu or room.s thereof in thi.s Condominium, except that children may be permitted to visit and. temporarily reside for rea.”
Why It’s Flagged
42 U.S.C. §§ 3604(b), 3604(f), 3607(b)(2) & 24 C.F.R. §§ 100.304–100.307 (HOPA)
- The Fair Housing Act (42 U.S.C. § 3604(b)) prohibits familial-status discrimination against families with children—including adult-only rental age floors (e.g., 24+), mandatory hourly pool exclusions targeting all minors under 18, blanket Common Area parental-escort rules for children, and caps on grandchildren—unless the community actively qualifies as 55+ Housing for Older Persons under 42 U.S.C. § 3607(b)(2) and 24 C.F.R. §§ 100.304–100.307 (which regulates occupancy rather than fee-simple title ownership and does not authorize intrusive medical/disability disclosures for live-in caregivers under 42 U.S.C. § 3604(f)).
Sample Discussion Wording for HOA Counsel
For Board & Counsel Review
- 1Any age-based occupancy restriction shall be enforceable only while the Association actively qualifies as "Housing for Older Persons" pursuant to 42 U.S.C. § 3607(b)(2)(C) and 24 C.F.R. §§ 100.304–100.307, including maintaining at least 80% occupancy of units by at least one person 55 years of age or older and conducting mandatory biennial age-verification surveys.
- 2Absent active HOPA qualification, no restriction shall discriminate on the basis of familial status.