Monday, December 19, 2011

Is your association vulnerable to a frivolous age discrimination lawsuit?

Last week, the Housing Opportunities Project for Excellence, Inc ("HOPE") called a press conference, issued a press release and sued several real estate agencies and condominium associations in Broward County. The group announced that one of its goals was to remind folks that are in the housing industry that they cannot discriminate against families with children.

HOPE was established as the result of a grant from HUD in October, 1988 to Metro-Dade County's Equal Opportunity Board (formerly the Fair Housing and Appeals Board). On its website, HOPE states that it is the only non-profit fair housing organization in Miami-Dade and Broward Counties currently engaged in "testing for fair housing law violations, pursuing enforcement of meritorious claims and conducting fair housing education and outreach." HOPE further states that it has recovered in excess of $8.5 million in settlements for victims of housing discrimination. HOPE's board of directors is composed of accomplished and well-known individuals.

This all sounds like our tax dollars hard at work in the worthy pursuit of ferreting out injustice in the housing industry. However, in the case of at least two Broward County condominium associations sued last week and named in that press release and at the press conference, none of the careful HOPE activities cited on their website actually took place.

According to HOPE's own lawsuits, HOPE "tester" and named plaintiff, Alyssa Arnell, apparently visited several internet sites listing classifieds for unit rentals and found ads which had language stating that "children under 12" were not allowed to visit the property being advertised for lease. In the case of one of the associations, Ms. Arnell also located an age restriction from 1986 but did not search further to find that the 1986 restriction was removed by further amendment in 2002.

In fact, HOPE did not take even the most basic steps to "research" the potential discrimination. A simple phone call to the association would have revealed that the unit being leased was being leased by an owner and not the association, that the association had no knowledge of the language this owner had in his ad, that the 1986 age restriction had been removed and that the association had never disapproved any prospective residents based on age since the 2002 amendment.

What attempts did HOPE make to educate these boards and communities before suing them and denouncing them in a highly public fashion? What level of care does a tax-funded agency such as HOPE have before calling private communities discriminatory when the facts don't support the accusations? Is it possible that HOPE is unaware that associations who are sued must put their insurance carriers on notice and risk possible repercussions as a result? Is it possible that HOPE is unaware that associations who unjustly find themselves on the receiving end of negative publicity might just have their pending sales affected?

Hopefully, HOPE will do right by the two associations it has apparently wrongly accused and any others out there with similar fact patterns. Perhaps, however, there is a silver lining in all of this for everyone else? Every community would be well advised to check their governing documents to ensure that age restrictions that are no longer legal and enforceable are promptly removed or, if amending them out is not a possibility given membership apathy, that a disclaimer is placed in the public records acknowledging that the restriction is no longer enforceable nor does the association refuse housing based on age.

If you find an out-of-date age restriction in your governing documents, it must be removed or disclaimed even if your association has never enforced it. Leaving it intact can be construed as de facto discrimination. Sometimes these restrictions are remnants from developers dating back decades and associations are unaware that they even exist in the documents. As for HOPE, let's all hope they start really researching and educating in addition to denouncing and suing.


  1. Does this mean there can no longer be "retirement" communities or "over 55" communities?

  2. No it does not mean that there can no longer be Housing for Older Persons (also known as "55 and older" communities) which are exempt from discrimination under the Fair Housing Amendments Act if they meet certain thresholds. It means that to be a valid 55 and Over community you need the proper language in your governing documents along with the proper occupancy threshold (ie at least 80% of your units or homes occupied by someone age 55 or older).