Posted on August 16, 2010 by Lisa Magill

Age Discrimination Claims Against Condos & HOAs ("55 & Over" Housing)

The Federal Fair Housing Act  (FHA) prohibits discrimination in any activities relating to the sale or rental of a dwelling because of race, color, religion, sex, handicap, familial status or national origin. The term "familial status" is defined as one or more individuals (who have not yet attained the age of 18 years) being domiciled with a parent or guardian or a designee of such parent. State statutes (Chapter 760, Florida Statutes) and local ordinances also regulate housing discrimination in regards to age, marital status, political affiliation, sexual orientation and other classifications.  Adding "familial status" to the list of protected classifications made former "adults only" communities either apply for an exemption or change their practices.

The most common exemption is known as the Housing for Older Persons Act (HOPA) exception that applies to communities operating as “55 or over” housing. To qualify for this exemption, the following criteria must be met:

  • At least 80% of the occupied 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.
  • The community must engage in adequate age verification procedures and routinely determine the occupancy of each unit to update the community census; and - here in Florida
  • The community needs to register with the Florida Commission on Human Relations and keep that registration current.

If the community does not qualify for the Housing for Older Persons exemption, it must allow families with children.  It doesn't matter if there are no other children.  It doesn't matter if the community doesn't have facilities for children or a place for them to play.  A community in Orange City, Florida recently agreed to pay $415,000 in monetary damages and civil penalties after the court found that the defendants violated the FHA by engaging in a pattern or practice of discrimination against families with children.  The Department of Justice prosecuted the lawsuit against the housing provider.

The Fair Housing Center of the Greater Palm Beaches recently filed suit against a condominium association in Boca Raton, Florida for familial status discrimination.  The association first rejected a sale to a man with three children and later refused to approve a tenancy where two children were expected to live in the unit.  Both governmental agencies and private fair housing advocacy groups use "testers" in support of discrimination claims.

If you're not sure your community is in compliance with the requirements of the Housing for Older Persons Act, please consult with legal counsel.

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Posted on April 1, 2010 by Lisa Magill

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: 

  1. At least 80% of the units must be occupied by at least one resident over the age of 55; 
  2. 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
  3. 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.

 

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