55 & Over Housing: What is the 80/20 Rule?
55 & Older Housing - what does that mean?
The Federal Fair Housing Act prohibits discrimination because of race, color, religion, sex, handicap, familial status or national origin. Many States have their own Fair Housing Act - in Florida Chapter 760 of the Florida Statutes is dedicated to discrimination issues that expand the protection to age and marital status. The term 'familial status' generally refers to occupancy by children (person under 18) with parent, guardian or designee of the parent. So why or how are there 55 & older communities? Well, every rule has exceptions, right? The Fair Housing Act is no different.
The Housing for Older Persons Act (HOPA) is an exception that allows communities to operate as “55 or over” housing. To qualify for this exemption, the following criteria must be met: 
- At least 80% of the units must be occupied by at least one resident over the age of 55;
- The community must publish and adhere to policies and procedures demonstrating an intent by the housing provider (the association) to provide housing for persons 55 years of age or older; and
- The housing provider must engage in appropriate age verification procedures that includes a community census from time to time.
Ok - at least one person 55 or older must reside in at least 80% of the occupied units. What do you do with the other 20%?
On April 1, 1999 the United States Department of House and Urban Development (“HUD “) published Federal Regulations implementing the Housing For Older Persons Act of 1995 (“HOPA”). Basically, HUD does not care how a community handles the 20% “cushion" as reflected below:
There continues to be confusion concerning what is often referred to as the 80/20 split. HOPA states that the minimum standard to obtain housing for persons who are 55 years of age or older status is that “at least 80%” of the occupied units be occupied by persons 55 years or older. There is no requirement that the remaining 20% of the occupied units be occupied by persons under the age of 55, nor is there a requirement that 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, and so long as such requirements are not inconsistent with the overall intent to be housing for older persons.
Does that mean a community that desires to sustain is 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) to permit exceptions when appropriate. 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 that 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 our view, the 'cushion' is exactly that - something that protects you or softens the requirements to avoid unpleasant results.
Does your community qualify as Housing for Older Persons? Community leaders that aren't sure should consult with counsel, as penalties for discrimination (even unintentional discrimination) can be harsh.
I am over my head and living on only social security. I need to know how to live with a lower rent. I am currently living on the upper east side but would move anywhere in the city for affordable rent.
We own a unit in a 55 plus community, st. lucie county FL Residents are being forced out because of unnecessary projects which have resulted in exhorbitant assessments --- i.e. plumbing projects for entire 60-unit complex, no contract with plumber; CAM is attempting to rule everything - majority owners 70 - 90 years of age.
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saraap01
Best Law Help
In a 55+ condo complex, can a hardship exception be granted to allow for an underage grandchild (under 18) residing with a grandparent, without affecting the 55+ status?
RESPONSE: Most of the time, yes. However, some communirty covenants do not give the board the option of making exceptions. Exceptions may be narrowly defined.
I guess I am looking for a definition of terminology. As a snowbird I am only in my condo unit 6 weeks a year. Thus not making me a perminant resident. I am just under the 55 age restricion. On the deed ,my wife her mother and myself are listed as owners. The question is does my motherinlaw have to be in the unit when I am there or is it good enough that she is an owner ?
If a unit within a 55 and over community is rented by the owner, who lives up North, to a 57 year old person and she in turn permits a person 40 to live in it without her being present, how does this stand within the HUD standards.
RESPONSE: The regulations only require at least 80% of the occupied units to be occupied by a person 55 or older, but there are other requirements to maintain HOPA status. The governing documents will address unit/home occupancy restrictions.
My dad was told the condo he had been initially interested in was under contract so since he wanted to live in the complex, chose another which was more expensive and it turns out is difficult to be comfortable in since the lady upstairs has a noisy dog. I feel that the woman who bought the condo he wanted because she was not 55, shouldn't have been allowed to make that deal. The board wasn't included, it was the decision of the salesman for the builder. Can anything be done about this kind of situation? Thanks for the help. The woman upstairs with the dob has been cited by the HOA but it doesn't seem to make a difference.
RESPONSE: Your father, as owner, has the right to pursue violations of the condominium documents. If the upstairs owner continues to create a nuisance, your father can seek to curtail her conduct. There are posts on this site regarding covenant enforcement that may be helpful.
I read your informative article about the 80/20 Rule. I am curious as to how that would apply where an over 55 owner transfers ownership to an under 55 family member. I have seen language in some declarations providing that the over 55 restriction will not apply to a transfer by a unit owner to an immediate family member. So in the face of such a provision it would appear that a transfer by an over 55 owner to an under 55 immediate family member would be valid. I look forward to hearing your thoughts on the issue.
RESPONSE: The HOPA requirements (state and federal) relate to occupancy, not ownership. Transfer of ownership is governed by the documents.
I read your informative article about the 80/20 Rule. I am curious as to how that would apply where an over 55 owner transfers ownership to an under 55 family member. I have seen language in some declarations providing that the over 55 restriction will not apply to a transfer by a unit owner to an immediate family member. So in the face of such a provision it would appear that a transfer by an over 55 owner to an under 55 immediate family member would be valid. I look forward to hearing your thoughts on the issue. Herb Milgrim (http://floridacondoattorneys.com)
I live in a 55+ only community. Being the new age of living together, we have numerous couples residing together in the same unit. However, only one is listed as an owner. The second person is not listed as an owner nor recognized on the property tax records as an owner. Since our documents requires an owner to be present when the unit is occupied, what happens when the owner dies and the unit is not in the surviving co-habatants name on the deed? I believe without being on the deed, then the surviving partner should be asked to move, which is cold, especially for the elderly. Also, since owners can attend meetings, what happens when a co-habitant non-owner attends meetings? Do we permit them to attend meetings just as we would their owner partner?
RESPONSE: You've raised timely issues that many associations need to confront. There are various ways a surviving partner may be entitled to stay in the home - the couple may have made arrangements for the other to continue to reside in the home as a long-term guest or occupant. Maybe title to the property will transfer to the other occupant (by life estate, deed, will or otherwise). Your documents probably address title transfers by gift or inheritance - those procedures may come into play if the title owner passes away.
Many associations create rules for purposes of compliance with the owner-occupancy requirement in the documents, naming the partner or significant other a "permanent occupant". That way there is no violation if the owner goes to visit his/her children for a month or is otherwise away from the property.
All non-owners must be treated the same when it comes to attendance at meetings and participation or voting on association issues. If the association allows other non-owners (such as spouses of owners) to attend, it should have the same policy with respect to significant others. I generally recommend against allowing non-owners to attend meetings.
Your question raises an important issue for the people in this situation. Planning is crucial. If you resided with someone for years and years would you want the association (or your children) to kick them out immediately upon your passing? Of course not - so seek counsel and plan how you want to handle the future occupancy or use of a home owned by one party.
Are persons with disabilities an exception to the 55+ rule? In other words, if a person is on disability, are they counted in the 80% and allowed to live in a 55+ community without effecting the communities standings? This community is in Florida.
If so, can you advise where I can find this exception stated?
Thank You!
RESPONSE: The required percentage of occupancy by persons age 55 or older is addressed in both the federal and state Housing for Older Persons Acts (HOPA). There are links to the laws on various posts in this site and on the HUD and Florida Commission on Human Relations websites.
I'm confused. I live in a 55+ condo. I am 70. I want to buy another unit which is for sale on the first floor. However, MAY I sell to a couple who are NOT 55, but will NOT live in the unit they purchase from me until one turns 55. Is that legal? HELP PLEASE
RESPONSE: Transfer and sale restrictions are determined by the applicable governing documents. The federal fair housing laws apply to occupancy, not ownership per se, but many communities impose additional restrictions to facilitate enforcement of the Housing for Older Persons exception.
What is the definition of 'occupied unit'.
We are a small condo association of 24 units which is registered as a 55+ community. At present about 10 of the units are not occupied on a regular basis, due to absentee owners (units unoccupied for more than a year), units for sale/rent, foreclosure, snowbird owners and bank owned.
That leaves about 14 occupied units at present, of which about 6 are year round owners/tenants.
What happens when my children (under 55) come down on their own with the grand children and use the condo. The 'occupied' wording is very difficult to understand.
It appears that the calculation for 'occupied' is a moving target and that the definition has nothing to do with ownership or occupancy rate.
RESPONSE: You raise a common question - the term "occupied" is somewhat vague. Different communities define the term differently - so that is the first place to check. The federal regulations only define certain aspects of the term "occupied". In one place there is a statement that says "occupied" includes units that are temporarily vacant but are occupied on a periodic basis (i.e. snowbirds).
Guest usage (use by your family when you are absent) is regulated by each community differently. Some communities only allow usage by guests under 18 when the owner (or approved over 55 person) is resident. Others allow this use for specific periods of time (i.e. less than 30 days, less than 2 weeks, etc.). If your community hasn't adopted guest use regulations, doing so is a good way to define "occupied" for fair housing (over 55) purposes and otherwise governing use of the property. Please consult with counsel regarding the extent or authority of the board to regulate use.
can an association in an over 55 community deny a purchase when an applicant is able to purchase the condo for cash and has the ability and finances to cover their maintenance fees? in the agreement i signed i gave them my tax returns which more than covered the minimum requirements they required, all my references personal and banks. then without giving me the opportunity in an interview the association denied my purchase, they stated i did not qualify. my credit score is fair, not good. i was never arrested and my age is 82 not disabled in any way. help
RESPONSE: The sale approval process is dictated by the governing documents. There may be reasons other than financial reasons you did not qualify for membership revealed on the application itself, thus obviating the need for an interview.
My Grandma just passes away and owned a over 55 condo jointly with my mother. Can she add my sister and I on the deed as owners so that we may own under 55 if she passes? also if we are owners can we bring our children (under 18) there to visit with out her presence since we are owners?
Thanks
RESPONSE: The documents traditionally restrict use and occupancy rather than ownership. However, many governing documents impose restrictions regarding gifts or voluntary transfers of title.
Rules regarding use by visitors or children of owners are different in each community. Ownership, by itself, does not result in an exception to the age restrictions.
I recently became an officer on the HOA board in a 55 and over mobile home community. Some people, including board members and officers, seem to think there is a deed restriction that states only 2 people can occupy each residence. I have read the covenants and no such restriction is stated. Since they thought that was already a deed restriction, they are planning on drawing up a revision including it and submitting that to a vote. Can a HOA actually restrict the number of residents in a dwelling when both the dwelling and the property it sits on belong to the homeowner as long as that homeowner and the occupants meet the age requirements?
RESPONSE: Occupancy limitations in deed restrictions are somewhat tricky. In the past HUD issued a memorandum indicating its position that a 2 person per bedroom occupancy rule (if adopted properly) was presumptively reasonable. I believe it has backed away from that position - but HUD does not make laws for homeowners associations. The size of the residence is relevant to a certain extent as is the type of restriction. Restrictions in the declaration or underlying deed restrictions are not subject to the reasonableness standard for the most part.
I purchased a unit in a 55+ community in Fla. My father is in his late 80s and living with me. That allowed me to purchase. I have had great difficulty in selling my property up north. I was planning on moving him and me there. In the event he passes can I still live in the property when I sell my house here. I am under 55. Please let me know.
RESPONSE: Please contact the association to find out what policies they have for occupancy by persons under the age of 55. Generally the association will have guidelines outlining what types of hardship exceptions it will allow within the 20% buffer permitted by Federal law.
I am look to buy in an over 55 development in Pinellas Fl.
I am over 55. May my 28 year old daughter live with me
RESPONSE: It depends on the specific community and the governing documents for that community. In my experience, most 55 & over communities will allow adult members of the owner's family to reside in the home. Most communities ask the prospective owner who will reside in the home in connection with the application process.
Thank you for the article, but im under 55 and own 10 units and living in 1 of them in a 55 and up community, i understand the problems with the 80/20 I had to sue the community I bought the property in to get in the first place.
Now I will have to sue 9 more times to sell my property to who I so choose to.
I think its far overdue for these archaic ways of living to be abolished for good.
Measures restricting where citizens can live based off of any restriction is counter productive to any society.
I live in Florida, trying to move to oseaola county from
oirange cty, who do I contact in regard to the HOPA plan
I have contacted several agency's but no now seems to be able to assist except for HUD, which is not accepting
any more name.
RESPONSE: HOPA is not assisted housing (financial or otherwise), it is an exception to the laws prohibiting housing providers from excluding families with children.
I LIVE IN A 55 AND OLDER COMMUNITY AND AM DUSABLED. MY GRANDAUGHTER IS LIVING WITH ME FOR A FEW MONTHS. WILL SHE BE ABLE TO LIVE HERE WITH THE 80-20 RULE. WILL I HAVE TO GET A DOCTORS EXCUSE. THANKS
RESPONSE: There are so many variables here that I cannot comment. However, have you asked the board or management if you need or how you obtain permission for your granddaughter to move in? Sometimes the simple approach is the most effective.
Schnitt,i understand how you feel,i`m going through the same thing now.The tougher you act the more they hate you,the more they`re going to put sticks in your wheels to try to slow you down.we have been refused sales,when the buyer was accepted the board would give the buyer such a hard time they would back out of the deal.we have had the leases of some of our rented units end up at some tax office in fl.to check and make sure if the hotel taxes were collected.The board is were going to turn it into a hotel.Need a good lawyer any help
HI I AM 40 YEARS OLD AND I AM RECEIVING SOCIAL SECURITY DISABILITY FOR THE REST OF MY LIFE. I AM GETTING A CONDO FROM MY SISTER-IN-LAW WHO IS 55 YEARS OLD. CAN I OWN THIS CONDO IN FLORIDA.
RESPONSE: You'll have to ask the community association. Each community has different occupancy and ownership requirements. Many communities do not allow voluntary transfers where none of the intended occupants will qualify for the age restriction.
Question- My wife has ssi disablity and hasn't been able to work since 1999 and she is 40, I'm 39. By the Florida rule 80/20 can a 55+ community turn us down to be able to purchase and reside in the community?
RESPONSE: The 80/20 rule isn't a Florida rule and its not clear how the disability has anything to do with the age restrictions in a HOPA community.
My husband and I are both under 55 living in a 55+ community, with my mother (who is older than 55) coming and going only residing certain times of year. The 3 of our names are on the lease and now the association is claiming no one over 55 is living in the home. Upon renting, the property manager informed us if we lived there with my mother's name on the lease and her being a "snowbird" coming and going we would be within the rules and be fine. But like I said, now the association is claiming she is not living here. I'm not sure what to do. We moved in because we were told it was okay. Are we violating any laws? Do we have rights? We love this place. We are friendly with our neighbors, everyone is so nice. We don't understand why they are doing this.
RESPONSE: Check with the property manager that initially approved the transaction (application) and explain the situation to the board of directors. Be prepared to show evidence that your Mother (the conforming resident) does come and stay in the property as a snowbird. The board may feel that the occupancy did not conform to the information on the application.
I am living in a 55+ adult MHP in Valrico, Fl. and we are allowed to rent out our homes to anyone over the age of 18 who quaifies financially and is accepted by management. My question is, " Does the renter then have the same rights and use of all the amenities as the owner or are they limited and if so where will I be able to find a ruling on this??" Thank you for your quick response.
RESPONSE: It would be very unusual for a Housing for Older Persons community to allow rentals where none of the intended occupants are 55 or older.
The condominium act allows tenants to step into the shoes of an owner, unless the lease says otherwise and reserves right of use to the owner. MHP can be condominiums, but many are organized differently.
i just purchased a property from foreclosure in a 55+ communitty, I am only 45 year old. I have been remodeling for three months and did a survey our building useing county records. my building has 108 units out of which 27 are in various states ie. foreclosure/owner pastaway and is now in trust/ investment property with owners in others states/ HOA foreclosed and owned. I have seen first hand that these units are not "occupied" and the community does not meet the 80/20 rule for more than 5 months. How can I address this to the state and HOA. Becuase it is unfair to say you are a 55+ and you are not. This to me is discrimination and unlawful practice. IE. bait and switch. HELP PLEASE....
RESPONSE: You may be miscalculating the percentages. The fair housing acts require a minimum threshold of 80% of the occupied units to have at least one occupant that is 55 or older. The non-occupied units are not counted in the equation. If you believe there is a fair housing violation you can file a complaint with the local investigating agency or the Florida Commission on Human Relations.