Yes, 55+ Age-Restricted Communities ARE Legal
By: Melissa M. Garcia, Esq.
Families with children are protected under the Fair Housing Amendments Act (“FHAA”), correct? Yes. The FHAA makes it unlawful for an association to discriminate based on familial status.
So that means an association cannot restrict children from living in the community, correct? Wrong. An association can prohibit children from living in the community.
Wait…what? The answer is HOPA. And you’re probably thinking “I HOPA she explains herself“!
HOPA stands for the Housing for Older Persons Act of 1995. Signed into law on December 28, 1995, HOPA creates an exemption under the FHAA for communities designed specifically for older residents. Essentially, if your community qualifies as a HOPA community, it is exempted from the prohibition against familial status discrimination.
So what does it take to be a HOPA community? HUD published a memo that answers a number of frequently asked questions concerning HOPA, but here is a brief overview:
- At least 80% of the units must be occupied by at least one person 55 years of age or older per unit;
- The association must publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older; and
- The association must comply with HUD’s regulatory requirements for age verification of residents
The 80% Requirement
To calculate this take the total number of units in the community and subtract from this number:
- the number of units that have been continuously occupied by the same household since September 13, 1988, and the household did not contain and does not currently contain at least one person over the age of 55;
- the number of unoccupied units (circumstances where a 55 or older occupant may be temporarily absent, such as on vacation, hospitalized, or absent for a season);
- the number of units occupied by employees of the community who are under 55 years of age, and who provide substantial management and maintenance services to the community; and
- the number of units occupied solely by persons who are necessary or essential to provide medical and/or health and nursing care services as a reasonable accommodation to residents.
Then, calculate the percentage of the remaining number of units that are occupied by at least one person who is age 55 or over. This percentage must be at least 80%. The remaining 20% of the units may be occupied by persons under 55, with the community still qualifying for the exemption.
The Policies and Procedures Requirement
HOPA provides several examples of the types of policies and procedures that would demonstrate an intent to provide housing for persons 55 years of age or older, including:
- the written rules, regulations, lease provisions, deed or other restrictions;
- the actual practices of the owner/management of the housing facility/community used in the enforcement of the rules;
- the kind of advertising used to attract prospective residents to the community as well as the manner in which the community is described to prospective residents;
- the community’s age verification procedures, and its ability to produce, in response to a familial status complaint, verification of required occupancy.
The Verification Requirement
According to HOPA, any of the following documents are considered reliable documentation of the age of the occupants of the community:
- Driver’s license;
- Birth certificate;
- Immigration card;
- Military identification;
- Any other state, local, national, or international official documents containing a birth date of comparable reliability; or
- A certification in a lease, application, affidavit, or other document signed by any member of the household age 18 or older asserting that at least one person in the unit is 55 years of age or older.
Keep in mind the association must verify compliance with the age requirement at least once every two years. That means every two years the association must re-survey its list of residents to ensure that the 80% requirement is met.
If the occupants of a particular dwelling unit refuse to comply with the age verification procedures, the association may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older. Such evidence may include: (1) Government records or documents, such as a local household census; (2) Prior forms or applications; or (3) A statement from an individual who has personal knowledge of the age of the occupants. The individuals statement must set forth the basis for such knowledge and be signed under the penalty of perjury.
If your community is interested in becoming an age 55 and over restricted community, please contact any of our attorneys at (303) 432-9999, and we can guide you through the steps.