4.03 Age and Occupancy Restrictions

• Library: South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.)

4.03 Age and Occupancy Restrictions¹⁰⁵

Generally: "... age limitations or restrictions are reasonable means to accomplish the lawful purpose of providing appropriate facilities for the differing housing needs and desires of varying age groups."¹⁰⁶

Age restrictions must be reasonable, and not discriminatory, arbitrary or oppressive in application, and those standards should be applied whenever it is asserted an age restriction violates due process or equal protection.¹⁰⁷ Constellation Condominium Ass'n, Inc. v. Harrington¹⁰⁸ examined a typical age restriction. The rule stated:

Children 12 years of age and older are allowed as permanent residents. However, they should not cause disturbances and their conduct while on any condominium property is the direct responsibility of their parents or guardians at all times. Children under the age of 12 years are allowed as temporary residents during vacations, holidays, weekends, etc.

The Harringtons who, as realtors, participated in marketing the project, discovered they were having a child the day after closing on their own unit. Although they and the association reached an agreement under which they would leave the unit so as not to violate the age restriction, the Harringtons did not leave. The association filed suit to enforce its restriction. The trial court held that the rule did not specifically prohibit children under 12 from being permanent residents. It also found that an amendment clarifying the definition of "permanent" was an unenforceable retroactive regulation. The decision was reversed on appeal. The appellate court said the language of the rule was clear and unambiguous. While it conceded the clarifying amendment would be a retroactive regulation if applied to the Harringtons, it decided that the original rule was adequate to effect the association's goal.

Preston Tower Condominium Ass'n v. S.B. Realty, Inc.¹⁰⁹ considered a different restriction, one prohibiting children under 16 from moving into a unit or from continuing to live there if they were born within the first seven months of their parent's occupancy or ownership. The rule granted the board of directors authority to approve special exceptions in exceptional circumstances. Lessees of a unit in Preston Tower moved in with a child under 16. They requested a special exception and were denied. The board filed suit to enforce its age restriction. The lessees argued the restriction violated the Fourteenth Amendment to the United States Constitution as the exception to the rule for children born to owners who at the time of the birth have been owners or residents of the condominium for more than seven months was arbitrary and unreasonable both because it applied only to owners and because of the time requirement. Additionally they contended it did not further the stated goal: to create a child-free environment. The court disagreed. It relied on the second goal of the restriction, to avoid unusually great hardship, and said ". both the distinction between tenants and owners and the requirement of ownership or residence in excess of seven months are reasonable means of achieving the legitimate goal of maintaining a virtually child free environment without undue hardship to present owners and residents."¹¹⁰ The court remanded for trial on the merits of the issue of selective or arbitrary application, however, because of conflicting evidence about whether other children lived permanently in the condominium.

Age restrictions may pass constitutional muster, but not meet the requirements of state law¹¹¹ or the federal Fair Housing Amendments Act of 1988.¹¹² The amendments extended the Fair Housing Act¹¹³ protections to families with children. The Act includes a definition of "familial status":

...one or more individuals (who have not attained the age of 18 years) being domiciled with -

(1) a parent or another person having legal custody of such individual or individuals; or
(2) the designee of such parent or other person having such custody, with written permission of such parent or other person.

The protection afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.¹¹⁴

The definition implements a prohibition against discrimination which reads: "It shall be unlawful for any person or other entity whose business includes engaging in residential real estate transactions to discriminate against any person in making available such a transaction, or in terms or conditions of such transaction, because of . familial status ... ."¹¹⁵ This clause, and all other provisions in the Act are inapplicable to "housing for older people." Previously it was difficult to qualify as "housing for older people" under the Act and its implementing regulations.¹¹⁶ Qualification is now greatly less difficult to obtain.¹¹⁷ However, Martin v. Palm Beach Atlantic Ass'n ¹¹⁸ demonstrates that age restrictions still present problems for associations. In Martin the trial court granted a directed verdict for the association in an action pursuant to the Act and found the evidence failed to show the regulations against children had ever been enforced against the plaintiff. The appellate court reversed deciding:

The rules of appellee condominium prohibiting children are discriminatory on their face under the "familial status" section of the FHA. Their publication is a statutory violation. In the instant case, the association may not have enforced the restriction in question, but it neither...