55+ Communities

There is a federal exemption to anti-discrimination housing laws, which allows certain housing/developments to be reserved for older generations.

Briefly, formal documents state Senior housing is governed by both federal law and state law.  On the federal level, there is the Housing for Older Persons Act (HOPA)… 

The Housing for Older Persons Act of 1995 creates an exception to Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), in order to allow for senior housing developments.

The Fair Housing Act protects all residents from discrimination on the basis of race, color, national origin, religion, sex, handicap or familial status.

Senior housing facilities and communities are exempt from liability for familial status discrimination under HOPA.  Exempt senior housing facilities or communities can lawfully refuse to sell or rent dwellings to families with minor children.  

In order to qualify for HOPA, a facility or community must prove through resident surveys and affidavits that its housing is:

• Provided under any State or Federal program The United States Department of      Housing and Urban Development (HUD) has determined to be specifically designed and operated to assist elderly persons (as defined in the State or Federal program); or
• Intended for, and solely occupied by persons 62 years of age or older; or
• Intended and operated for occupancy by persons 55 years of age or older.

In order to qualify for the “55 or older” housing exemption, a facility or community must satisfy each of the following basic requirements:

• At least 80 percent of the units must have at least one occupant who is 55 years of age or older; and
• The facility or community must publish and adhere to policies and procedures that demonstrate the intent to operate as “55 or older” housing; and
• The facility or community must comply with HUD’s regulatory requirements for age verification of residents.

Case law has determined if an association/community has consistently maintained the required 80% threshold but has previously failed to comply with HOPA’s age-verification requirements, including the required surveys and affidavits, that in itself will not disqualify the association from being afforded HOPA’s protections. (Balvage v. Ryderwood Improvement Services Assn. (9th Cir. 2011) 642 F.3d  765.)

HOPA does not protect senior housing facilities or communities from liability for housing discrimination based on race, color, religion, sex, disability, or national origin.

Further clarification ….. There continues to be confusion concerning what is often referred to as the 80/20 split.  HOPA states the minimum standard to obtain housing for persons who are 55 years of age or older status is at least 80% of the occupied units be occupied by persons 55 years or older.  

• There is no requirement the remaining 20% of the occupied units be occupied by persons under the age of 55, nor is there a requirement those units be used only for persons where at least one member of the household is 55 years of age or older.  Communities may decline to permit any persons under the age of 55; may require that 100% of the units have at least one occupant who is 55 years of age or older; may permit up to 20% of the occupied units to be occupied by persons who are younger than 55 years of age; or set whatever requirements they wish, as long as at least 80% of the occupied units are occupied by one person 55 years of age or older, as long as such requirements are not inconsistent with the overall intent to be housing for older persons.

• Does that mean a community which desires to sustain its Housing for Older Persons status should let everyone in up to the 20%?  No, not really.  The "cushion" is designed to allow the housing provider (association/community) to permit exceptions when appropriate.  

• Example:  If a couple resides in a property and one is 55 and the other not, do you, as a community leader or manager, want to be put in a position which requires you to say "you're in violation" if the resident over 55 passes away?  What if the couple gets divorced?  What if someone resides with their adult child?  In the reviews I have researched, the 'cushion' is exactly that - something which protects you or softens the requirements to avoid unpleasant results.