Housing for Older Persons – FHA Legal Requirements for Condos and HOAs

This article explains the key requirements for communities to maintain their status—and special legal privileges—as “housing for older persons,” which is of greater importance as the population ages. It is of further importance because the failure to comply with the FHA can result in civil fines, damages, attorney fees and litigation costs.

What is the Fair Housing Act (FHA)

The FHA was passed to prohibit discrimination in the housing market on the basis of race, color, national origin, religion, sex, familial status or handicap. The FHA defines “familial status” as one or more persons under the age of 18 who are domiciled with a parent or legal guardian. In other words, the FHA prohibits discrimination in housing against people living with children. Washington also prohibits discrimination based on familial status.
However, the FHA not only permits but actually encourages age discrimination in certain situations. One of those situations concerns “housing for older persons” as defined by the Housing for Older Persons Act of 1995, an amendment to the FHA.

Washington Also Allows Exemptions for Elderly Housing

Pursuant to the amendments, the FHA exempts housing for older persons from the prohibition against familial status discrimination in the following situations:

• The U.S Department of Housing and Urban Development specifically determines that a particular community is designed to house elderly person under a Federal or State program
• The housing is occupied solely by people who are at least 62 years old
• The housing has at least one person who is 55 years of age in at least 80 percent of the occupied units, with a strict policy demonstrating the intent to house persons who are at least 55 years old

In order for this final provision to apply, three requirements must be satisfied. First, the housing must meet the 80 percent occupancy requirements for those who are at least 55 years old. Next, the community must publish policies and procedures evidencing the intent to maintain elderly housing.Third, the community must consistently follow those policies and procedures.

Factors Considered

Under the Federal regulations, a number of factors and written materials are considered when deciding whether a community demonstrates the intent to operate as housing for residents who are at least 55 years old, such as:

• the description of the community to prospective residents;
• advertising materials;
• lease agreement provisions;
• the community’s written rules;
• whether there are public postings in common areas describing the community as housing for persons at least 55 years old; and the actual practices of the community, including consistency in applying its rules.

If 80 percent of the units are occupied by at least one person who is 55 or older, then the community can make its own rules as to the occupancy of the remaining 20 percent of the units, such as allowing children to live there. However, in these situations, the community must take greater steps to ensure compliance with the 80 percent requirement. These steps include the requirement that the community perform bi-annual surveys of the residents and maintain the survey records for agency inspection.

Publish and Practice

Publishing specific policies and adhering to them also helps to avoid disagreements, as uncertainty can lead to disagreements within the community. Examples abound of associations and residents ending up in litigation because elderly residents assist younger family members in contravention of published policies. At times an association or its managing agents may be tempted to turn a blind eye to these transgressions. By the time a complaint occurs, a pattern of leniency may reasonably lead younger family members and their older hosts to believe that they have a right to their living arrangement. These beliefs are not easily abandoned and can result in costly litigation.