Condo Media - August 2019 - 46

Age IS MORE THAN A NUMBER
UNIT USE AND
RESTRICTIONS LAWS,
AMENDMENTS AND CRITERIA
In 1968, Congress passed the Fair
Housing Act, which made it illegal to
discriminate in housing (i.e. sale, leasing, rental and financing based on a
person's race, color, religion, or national
origin). The act was amended in 1974 to
make it illegal to discriminate against a
person based on sex.
In 1988, discrimination against a person based on disability and/or familial
status was added to the list of those
considered to be "protected classes."
However, in prohibiting discrimination
based on familial status, the Act did
permit an exemption for "senior housing"; it would not be considered discriminatory to develop age-restricted
communities, as long as certain criteria
were met.
The criteria were a requirement to
provide significant facilities and services specifically designed to meet the
social needs of an older person; 80% of
the units were required to be occupied
(not owned) by at least one person over
the age of 55; and policies and procedures were required to be published
and adhered to, which demonstrated
the intent to provide housing for these
seniors, i.e. persons over the age of 55.
(Historical note: While there were antidiscrimination laws as far back as the
Civil Rights Act of 1866, which was designed to assist former slaves to obtain
housing, such discrimination was not a
federal offense until the Fair Housing
Act was passed.)
Finally, in 1995, the Fair Housing Act
was amended to eliminate the requirement of "significant facilities and services specifically designed to meet the
social needs of older persons." This last
amendment was known as the Housing for Older Persons Act, or "HOPA,"
although the ability to "discriminate"
based on familial status was provided
in 1988.
OCCUPANCY REQUIREMENTS
When the 1988 amendment to the
Act was first passed, the 80-percent

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CONDOMEDIA August 2019

occupancy requirement was presumed
to encompass those situations where
a community met all the statutory
criteria with the exception of the age
requirement or to permit the exemption to continue if one occupant
over the age of 55 died. Under those
circumstances, the law of unintended
consequences could have operated to
deny those communities the protection
of the exemption if 100 percent of the
occupants were required to be over 55.
However, over time this 80-percent
threshold requirement for the exemption has come to be interpreted to mean
that up to 20 percent of occupancy can
be set aside for persons under the age of
55 without losing the protection of the
"Older Person" exemption. While it is
an open question as to whether or not
a developer advertising a community
association as an "over-55 community"
while deliberately setting aside 20
percent of the units for those under that
age actually satisfies the criterion for
publishing and adhering to policies and
procedures which "demonstrate the
intent to provide housing for seniors."
Nevertheless, it has been noted that
developers do continue to utilize it for
that purpose.
COMPLIANCE WITH HOPA
First and foremost is the age requirement for occupancy by a person over
the age of 55, whether it is 80 percent or
100 percent of the community. Thereafter, the association must develop
policies and procedures that establish
the necessary intent to qualify for the
HOPA exemption. In all publications,
such as newsletters, websites, advertising and governing documents, the association must include a description that
it is housing for persons over 55. Any
lease must contain information that the
association is an over-55 community.
A statement should be posted in the
common area advising that the community is an over-55 community, and
prospective buyers must be provided
with a copy of the age restriction policy.
Interestingly, the Department of
Housing Development (HUD) rule

1988
Discrimination
against a person
based on disability
and/or familial
status was added
to the list of those
considered to be
"protected classes"
- and it would not
be discriminatory
to develop
age-restricted
communities.

implementing HOPA states that
phrases such as "adult community" or
"adult living" do not demonstrate an
association's intent to qualify for the
HOPA exemption.
A critical area of HOPA compliance
is verification of the minimum age
for occupancy. Each association must
produce and keep in its official records
verification of its compliance with
HOPA. This verification must include
surveys. Every other year, the association must routinely conduct or update
its survey to determine the occupancy
of each unit, including the identification
of whether at least one occupant of each
unit is 55 years of age or older. The association must require any new owner
of a unit to produce reliable documentation of all occupants' ages. Copies of
the reliable documentation must be
retained by the association.
Condo Media - August 2019

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