Q&A: Unfair Access Card Systems

Q I live in an adult community that is putting in a new card access system. Our community allows 19-year-olds and above to live here also. The board is going to be allowing two access cards per home, then the homeowner must purchase cards for their additional legal resident living in their home at $100 per person. Is this not discrimination? Does it come under the Fair Housing Act?

—Carded in New Jersey

A “The Fair Housing Act (FHA) is a federal law that prohibits discrimination in the sale or rental of housing or in the provision of services or facilities in connection with housing,” says A. Christopher Florio, an attorney with the Lawrenceville, New Jersey-based law firm of Stark & Stark. “The FHA protects against discrimination on the basis of handicap, race, color, religion, sex, familial status, and national origin. In New Jersey, the Law Against Discrimination (LAD) provides similar protections. Under the law your community association may not discriminate against you because of your religion or race or any other protected category.

“In this case, you are concerned that the association is discriminating against households with more than two occupants. Those households that need more than two cards must pay $100 per card. The actions of the association are based on non-discriminatory criteria which means that none of the protected categories under the FHA or the LAD are involved in the association’s decision. Based on the facts given, no illegal discrimination has occurred.

“It may be that you believe the association’s action is discriminatory on the basis of familial status because those households primarily affected by the rule have adult children living at home. Discrimination against adult children living at home is not prohibited by the law, at least as it concerns familial status. To invoke the ‘familial status’ category, the children must be age 18 or younger. Even so, your association does not charge the fee only to those with adult children residing with them but to all households who need more cards. Finally, as you stated, your association is an ‘adult community,’ which usually means it is intended for occupancy by those 55 years of age and older. These communities enjoy a limited exemption from the FHA and may legally discriminate on the basis of ‘familial status.’

“If you still believe the association’s decision is not appropriate, you should consult the master deed or declaration and bylaws. Boards are typically given broad power to operate the common elements and make all necessary rules and regulations for their use. You will likely find the charging of a fee for additional access cards is permitted.”

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