Could a Louisiana condominium become 'adults only' because most residents were older?

Plain-English summary

A legislator asked whether Whitney Place, a condominium where most residents were older, could amend its governing documents to become an “adults only” complex. In Opinion 03-0035, the Louisiana Attorney General identified state and federal protections against housing discrimination based on familial status. He explained that a bare “adults only” rule did not by itself satisfy an exception for housing for older persons.

The opinion described the then-applicable older-person housing conditions, including qualifying occupancy and published policies demonstrating the intent to serve older residents. The AG did not decide whether Whitney Place met those conditions. He said compliance with federal law involved a factual determination his office could not make and referred the requester to the U.S. Department of Housing and Urban Development.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at issuance

Condominium boards and property managers

The AG said an “adults only” label was not enough to claim the housing-for-older-persons exception. The opinion described a route involving at least 80 percent of units occupied by someone 55 or older, specified facilities and services, and published policies; it also quoted an alternative for housing intended for and occupied solely by people 62 or older. It did not find that Whitney Place satisfied either route.

Families with children

The opinion identified familial status as a protected category in housing law. It described the federal definition as including a child under 18 living with a parent, legal custodian, or an authorized designee. The AG did not rule on a particular family's claim against Whitney Place.

Housing officials

The opinion pointed to HUD for the factual federal-law assessment of this proposed condominium restriction. It did not issue a finding that the complex was lawful or unlawful under federal law.

Common questions

Q: Could a condominium simply vote to call itself “adults only”? A: The AG said the label alone did not qualify it for the older-person housing exception. He did not decide whether this condominium otherwise met the statutory conditions.

Q: Did the residents' older average age settle whether the exception applied? A: No. The request described an average age of 75 and at least 95 percent of residents as 60 or older, but the opinion still left compliance as a factual question.

Q: What older-person housing conditions did the opinion describe? A: It quoted one route involving at least 80 percent of units with a resident 55 or older, specified facilities and services, and published policies; another covered housing intended for and occupied solely by people 62 or older. These were the provisions discussed in 2003.

Q: Did the AG decide whether Whitney Place violated federal fair housing law? A: No. He expressly declined that factual determination and referred the requester to HUD.

Background and statutory framework

Whitney Place's governing documents could be amended by a two-thirds vote of unit owners, according to the request. The opinion quoted R.S. 51:2602's equal-housing policy, discussed the older-person exception in R.S. 51:2605, and identified federal familial-status protections in 42 USC 3604 and the definition in 42 USC 3602(k). It did not determine federal compliance for this property. The PDF's March date stamp has an unclear day in OCR, so the exact issue date is blank.

Citations and references

Authorities in the opinion: R.S. 51:2602; R.S. 51:2605; 42 USC 3604; 42 USC 3602(k). The opinion also discussed federal court decisions on familial-status protection and the older-person exception, but its OCR is damaged in one case name, so the citations are left in the source text below.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0035

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

DEPARTMENT OF JUSTICE
cw~ o~v~s~o~
P.O. Box 94005
TEl..: (504) 342-7013
BATON ROUGE
FAX: (504) 342-2090
RICHARD P. IEYOUB
70B04-9005
ATTORNEY GENERAL

I"IAR 1 2003
53-1 - Housing Authodtm
OPINION 03-35
R.S. 51:2602
42 USC 36O4

Discrimination on the basis of fam~i~l status in the sale or rental of housing is unlawful
Hon. Jennifer Sneed
unless it may designamd
State Representative,
housing for ok/~" p~rsons.
District 81
433 Metairie Rd., Suite 204
Metaide, LA 70005

Dear Representative Sneed:

Thb o~e is in receipt of your request for an opinion of the Attorney General in regard to declaring the Whitney Place condominium complex for =adult’s only’. The condominium Declaration and Articles of Inco~n can be amended by two-thirds vote of the unit owners, and each unit is owned. We are informed that the average age them is seventy- five, but this is not an assisted living complex. At the present at least 95 percent of the residents are sixty or older. The management of the condominium asks whether the complex can be declared an adult only complex.

In state law we t’md the Chapter, Louisiana Equal Housing Opportunity Act, and ltmmin R.S. 51:2602 provides as follows:

A. The legislature finds and declares that persons in this state who seek a place to live should be able to t"~l such housing whenever it is available.
Further, in many localities there n~y be housing short~le. All person should therefore be able to compete for available housing on an open, fair, and equitable basis, regardless of race, color, religion, sex, handicap, familial status, or national origin.

B. It is therefore declared to be the policy of Louisiana that there is a legitimate governmental interest in protecting the welfare of the people of Louisiana by enacting equal housing opportunity legislation to discourage discriminatow housing practices.

C. It is the policy of the State of Louisiana to.provide, within the state and federal constitutional limitations, for fair and equal housing opportunity throughout the stme.

Rep. Jennifer Sneed
OPINION 03-35
Page 2

Thus, while the State has set forth its policy with regard to fair housing, a determination as to whether an action violates the federal law cannot be made by this office.

Under federal law is 42 USC 3604, "Discrimination in the sale or rental of housing and other prohibited practices’, provides it shall be unlawful (a) to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familia status, or national origin." Under the Fair Housing Act we find in the definition set forth in 42 USC 3602(k) =Familia status" means 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 individuals or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person."

As observed by the court in U.S.v. Le.~re, 816 F.Supp 1000(MD Penn 1991), =in 1988 Congress amended portions of the Fair Housing Act to prohibit discrimination on the basis of familial status." It found this was to accord families essentially the same protections as racial minorities, stating, =Congress indicated that these amendments are intended to alleviate the squeeze on affordable housing stock for families with children and to protect such families from eviction or inability to find reasonably priced places to live."

However, we note exceptions in both the Federal and State Law to familial status.

Pursuant to R.S. 51:2605, Exemptions, it is provided that nothing in the Chapter limits the applicability of any reasonable local, state, or federal restrictions regarding the maximum number of occupants to occupy a dwelling, nor regarding familial status with respect to dwellings provided under any state or federal program specifically designed and operated to assist elderly persons, as defined in the state or federal program, =or to housing for older persons." The statute then provides:

As used in this Subsection, =housing for older persons" means housing communities consisting of dwellings either:

(1)(a) intended for, and at least eighty percent occupied by, at least one person who is fifty-f’Ne years of age or older per unit and providing signif’ment facilities and services specifically designed to meet the physical or social needs of such persons; and

(b) The publication of, and adherence to, policies and procedures which demonstrate an intent by the owner or manager to provide for persons fifty- five years or older; or

Rep. Jennifer Sn~’~d
OPINION 03-35
Page 3

(2) Intended for and occupied solely by persons sixty-two years of age or older.

The court observed in Taylor v. Rancho Santa Barbara, 206 F.3d 932 (9th Cir 2000) that the housing-for-older persons exemption bears a rational relationship to governments legitimate interest in preserving and promoting housing for older persons, but to acquire such status there must be publication of such policy. This cannot simply be a rule stating
=adults only" for exemptions from the Fair Housing Act are narrowly construed.

in 42 USC 607 and R.S. 51:2605 for =housing for older persons" it is required at least 80% of the units be occupied by at least one person 55 years or older, and there must be publication of the policy.

In conclusion, we refer you to the U.S. Department of Housing and Urban Development as to whether or not this facility complies with federal law as to the housing of older persons which is a factual determination that cannot be made by our office in this opinion. They can be reached on-line as %wvw.hud.gov" or locally in New Orleans, at 504=589- 7219.

We trust that the information provided herein acts as a resource or guide for those interested in pursuing this matter, but if we can be of further assistance, do not hesitate to contact us.

Very truly yours,

RICHARD P. IEYOUB
A’I-I’ORNEY GENERAL

BY
BARBARA B. RUTLEDGE
Assistant Attorney General

RPI/bb