2006 Issue 2

Active Adult Communities and Fair Housing
By Christopher Hansen, Esq.

Do you live in a “55 and over” community?  Is your “55 and over” community in compliance with the Federal Fair Housing Act?

Many unit owners, board members and property managers alike, do not realize that there are ongoing requirements that communities must comply with in order to be designated as a “55 and over” community.  A provision from the Fair Housing Act called the “Housing for Older Person’s Act of 1995" applies to common interest communities and requires that:

1. At least eighty (80%) percent of the units are occupied by at least one person is 55 or over;
2. That the community publish and adhere to policies and procedures that demonstrate an intent to be a “55 and over” community; and
3. The community must comply with rules issued by the Secretary of Housing for verification of occupancy which shall (i) provide for verification by reliable surveys and affidavits and (ii) include examples of the types of policies and procedures relevant to a determination that number 2 above has been followed.

The Housing for Older Person’s Act provides communities with an exemption from the Fair Housing Act as it applies to claims of discrimination due to familial status.  Let’s examine these provisions.

At least eighty (80%) percent of the units must be occupied by at least one person 55 or over.  This is a minimum standard.  In other words, communities can be more restrictive.  In common interest communities this type of restriction must be located in the community’s declaration.  If a community adheres only to this minimum that means that twenty (20%) percent of the units in the community can be occupied by people under the age of 55.

The community must publish and adhere to policies and procedures that demonstrate an intent to operate as a “55 and over” community and the community must comply with rules issued by the Secretary of Housing for verification of occupancy.  Having at least the eighty (80%) percent restriction in the declaration is the first step to complying with this requirement.  The community must also be able to demonstrate, through reliable surveys, that they meet the occupancy requirement.  Therefore, one policy for the community is that it conduct surveys.  The rules promulgated by the Secretary of Housing state that a community must conduct a survey once every two years to verify that the occupancy restriction is being met.  The survey should require verification of the occupant’s ages via some type of official document.  Many communities obtain age verification information when a new owner purchases their unit and therefore the association has a document on file.  Going forward, the survey can then simply verify that the occupancy has not changed.  Examples of acceptable documents to meet this requirement are a driver’s license, a birth certificate, a passport, an immigration card, military identification, any other state, local or national document that contains a statement of age or an affidavit or other document signed by a member of the household asserting that at least one person residing in that unit is 55 or over.  The community must keep all the survey records on file. 

There are other things that a community should do to ensure that they are in compliance.  For example, posting several signs throughout the property stating that the community is “55 and over” is advised.  This provides notice to potential purchasers and others walking through the property that the community is designated as such.  Resale certificates should state that the community is a “55 and over” community.  Association letterhead should state the name of the community at the top and underneath that identify it as a “55 and over” community.

The designation as a “55 and over” community is an exemption from a claim of discrimination.  Practically speaking, this means that the only time an association will be asked to produce this documentation will be in response to a complaint.  If your association does not have the documentation to show compliance with the “Housing for Older Person’s Act of 1995" it could be looking at significant liability. 
          
Chris Hansen, Esq. practices law in the firm of Bender Anderson & Barba, PC.  He currently serves on the CAI-CT Board of Directors and the Trade Show North Committee.

Editor’s Note:  Chris will be speaking at the March 18, 2006 trade at the 55+ Session.  Be sure to attend and bring lots of questions.  Find out what other 55+ communities are doing to keep their communities thriving.