In 1968 the Federal Fair Housing Act (also known as Title VIII of the Civil Rights Act) was enacted to prohibit discrimination based on race, color, religion, sex, or national origin. Subsequently, in 1988 the Act was amended to add discrimination based on disability and family status and in 1995 the Housing for Older Persons Act (“HOPA”) was created, exempting senior housing from familial status discrimination.
HOPA allows communities to function as housing for persons who are 55 years of age or older and to prohibit anyone under the age of 18 from occupying a dwelling within the community. However, for community associations to avail themselves of this exception, they must comply with each of the following requirements:
- At least 80% of the occupied units must have a minimum of one resident who is 55 years of age or older; and
- The community association has to publish and publicly adhere to the policies and procedures that demonstrate the intention of the community to operate as housing for persons who are 55 years of age or older; and
- The community association, by way of surveys and sworn declarations, must verify the age of the residents of the community every two years.
The US Department of Housing and Urban Development (HUD), does not care how the community applies the remaining 20%. There is nothing in the law that prohibits 20% of the units from being occupied by persons 18 years of age or younger. However, the community association cannot segregate those families with minor children to a section, building or part of a specific building.
With the passage of a statutory amendment to Chapter 760.29, Florida Statutes, effective July 1, 2020, Housing for Older Persons communities are no longer required to register with the Florida Commission on Human Relations agency. However, it is important for community association directors and officers to note that the minimum requirement of 80% occupancy by persons at least 55 years of age or older, and the community policies requirement demonstrating the intent to be housing for older persons entitling the community to be exempted from discrimination claims, has not changed. Only the registration and renewal requirements were removed from the statute.