Communities That May Lawfully Exclude Children

Residents of these communities generally believe the age restriction is simply a rule of the development, like the one about fence heights. It is an exception to a federal prohibition, and it survives only while a set of conditions continues to be satisfied.

The general rule, and why an exception was needed

Familial status is protected. Which means households with children under eighteen cannot lawfully be excluded from housing on that basis in the ordinary case.

Age-restricted developments would breach it. Since excluding families with children is precisely what they exist to do, which is why a statutory exception was required.

The exception is narrow. Available on defined conditions rather than to any development that chooses to describe itself as being for older residents.

And it is continuing. Requiring ongoing compliance rather than a one-time designation, which is the feature communities most often lose sight of.

Losing it makes the rules unlawful. So a community that drifts out of compliance is enforcing an exclusion it is no longer entitled to apply.

The conditions

An occupancy threshold. With a substantial majority of occupied units occupied by at least one person above a defined age, on the common route.

Or exclusive occupancy above a higher age. Which is a separate route, requiring that every occupant meet the higher threshold rather than a proportion.

Published intent. The community must publish and adhere to policies demonstrating its intent to operate as housing for older persons.

Verification procedures. Reliable methods of confirming occupants' ages, conducted and updated periodically rather than assumed from a sales record.

And consistency. Since a community whose practice departs from its published policy has a problem quite apart from its arithmetic.

What communities get wrong

Letting verification lapse. So that no current survey exists and compliance cannot be demonstrated if anybody challenges the exclusion.

Assuming the designation is permanent. When it depends on occupancy that changes as units are sold and as residents die or move into care.

Excluding more than permitted. By treating the age threshold as an absolute bar on younger residents rather than as an occupancy proportion.

Applying rules inconsistently. Which undermines the published-intent condition and is frequently visible from the community's own records.

And confusing this with other obligations. Since accommodation and modification duties apply regardless, on the position in modifications a landlord must allow.

What residents should know

The restriction has a legal basis. Rather than resting on the association's preferences, which changes how disputes about it should be approached.

Compliance is the board's responsibility. And a board that cannot demonstrate it exposes the community to complaints it would rather not receive.

A grandchild moving in raises questions. Which are real, are not usually insurmountable, and are worth asking about before rather than after the move.

Other protections still apply. Including on disability and on the refusals set out in refusals that are unlawful.

And rules are enforceable. Through the association's own processes, with notice and an opportunity to be heard, per notice and the right to object.

What buyers should check

Whether the exception is actually maintained. By asking when the last age survey was conducted and what proportion it showed, which few buyers ever ask.

What the rules actually say. Rather than what a sales agent describes, since the governing documents are what will be enforced.

How rules are changed. And by whom, since restrictions can be tightened by a vote the buyer may not be able to influence.

What happens to a surviving younger spouse. Which is a question with real consequences and one that governing documents frequently address.

And whether the community is aging out. Since a development whose services depend on a critical mass of residents faces the pressures in what happens if the community fails.

The age restriction that residents treat as an ordinary community rule is in fact an exception to a federal prohibition, and understanding that changes how it should be regarded.

The exception is conditional and continuing, which means a community has an obligation to keep meeting it rather than a designation it obtained once and can rely on indefinitely.

Verification is the condition most often allowed to lapse, and it is the one a challenge would test first. Boards should be conducting surveys and should be able to say when the last one was.

Residents frequently misunderstand what the exception permits, treating it as a bar on anybody younger rather than as an occupancy proportion with room in it.

For buyers, asking when the last survey was conducted is a question almost nobody asks and one that reveals a good deal about how a community is actually run.

The governing documents are what will be enforced, and they can be changed by a vote, which is worth understanding before buying into a development whose rules matter to the decision.

Every other protection continues to apply regardless. An age-restricted community has the same obligations about accommodations and modifications as anybody else.

And where a family situation changes — a grandchild who needs to move in, a younger surviving spouse — the question is worth asking early, since these are situations governing documents frequently anticipate and resolve more easily than anybody expects.

There is a broader point here about how these communities are governed, which matters more than the age rule itself. They are run by boards of residents, with real powers over what people may do with their own homes, and those powers are exercised by neighbors rather than by professionals.

That produces both the best and the worst of these developments. At their best they are well run by people with a genuine stake in the place. At their worst they enforce rules selectively, resist accommodations that would be granted without argument by any commercial landlord, and become difficult in ways that are hard for a resident to challenge without falling out with everybody.

Understanding that the same legal obligations apply to a board as to any other housing provider is the thing residents most often do not know, and it changes what is possible when a dispute of that kind arises.