The Fair Housing Act, 42 USC 3601 et seq. (“FHA”), prohibits discrimination in housing based on an individual’s race, color, religion, sex, familial status, or national origin. Persons protected by the Fair Housing Act based on their familial status include:
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- Someone who is younger than 18 years old and lives with either a parent, a person who has legal custody of them, or a person who has been given written permission to have custody of them;
- Pregnant persons; and
- Someone who is in the process of obtaining legal custody of a child who is younger than 18 years old. Fair Housing Act, 42 USC 3601.
Notwithstanding its protections of families, the Fair Housing Act does permit communities who wish to restrict themselves to “older persons” to do so without running afoul of its provisions. In 1995, the Housing for Older Persons Act (“HOPA”) amended the Fair Housing Act to permit three different types of housing for “older persons:”
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- Housing that is provided under a state or federal program that the Secretary of Housing and Urban Development (“HUD”) determines is specifically designed and operated to assist elderly persons;
- Housing intended for and solely occupied by persons who are 62 years of age or older; and
- Housing intended and operated for occupancy by persons who are 55 years of age or older. Fair Housing Act, 42 USC 3607.
The most common of these is the 55+ community, which will be the focus of this article. Condos wishing to claim the HOPA exemption under the Fair Housing Act by becoming and staying a 55+ community must follow several statutory and regulatory requirements set by the U.S. government, which are outlined below.
How to Turn Your Condo Into a 55+ HOPA Community
To claim your condominium as a 55+ community under the Housing for Older Persons Act (“HOPA”), it must first satisfy the following two requirements:
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- Meet the 80% occupancy threshold. The Fair Housing Act, 42 USC 3607, and the Code of Federal Regulations, 24 CFR 100.305, require that at least 80% of the condominium’s units be occupied by at least one person who is 55 years of age or older. Note that this does not require all persons who occupy the condo unit to be at least 55 years old (only one person is required), and the other condominium units can be occupied by individuals who are younger than 55 years of age, including possible children. This 80% occupancy threshold, however, is a minimum standard and the condo association can impose a more stringent occupancy threshold if it wishes; such as 100% of units must be occupied by at least one person who is at least 55 years old or all persons occupying a unit must be at least 55 years old. When deciding to become a 55+ community, the condo association and its members will then need to decide whether to simply meet the minimum qualifying standard of 80% of units being occupied by at least one person who is 55 years of age or older or instead impose a higher age and occupancy threshold.
- Publish and follow policies and procedures that demonstrate an intent to be a 55+ HOPA community. In addition to meeting the minimum 80% occupancy threshold, the Fair Housing Act, 42 USC 3607, and Code of Federal Regulations, 24 CFR 100.306, require the condo to “publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons 55 years of age or older.” The Code of Federal Regulations provides the following examples of what will be reviewed to determine whether this requirement has been met:
a. The manner in which the housing facility or community is described to prospective residents;
b. Any advertising designed to attract prospective residents;
c. Lease provisions;
d. Written rules, regulations, covenants, deeds or other restrictions;
e. The maintenance and consistent application of relevant procedures;
f. Actual practices of the housing facility or community; and
g. Public posting in common areas of statements describing the facility or community as housing for persons 55 years of age or older.
The Code of Federal Regulations, 24 CFR 100.306, cautions that “[p]hrases such as ‘adult living’, ‘adult community’, or similar statements in any written advertisement or prospectus are not consistent with the intent that the housing facility or community intends to operate as housing for persons 55 years of age or older.”
Accordingly, once meeting the minimum 80% occupancy threshold, a condo that has decided to become a 55+ community should amend its master deed and bylaws to include its new age and occupancy restrictions within its governing documents, a process which will require the approval of 2/3 of all the co-owners entitled to vote and 2/3 of the first mortgagees of record. The condo also should revise any advertisements or materials it provides to prospective buyers and specifically describe itself as a 55+ community (not just an adult or active adult community) and consider posting signs in the condo association’s common areas that also identify the condo association as a 55+ community. If the condo association provides standard lease forms for its members to use when renting their condo units, it also will want to update those forms to incorporate the new age and occupancy restrictions.
How to Keep Your Condo a 55+ HOPA Community
Once your condo has become a 55+ community, both the Fair Housing Act and Housing for Older Persons Act (“HOPA”) require the condo to maintain policies and procedures that verify occupancy within the community on an ongoing basis. Specifically, the Code of Federal Regulations, 24 CFR 100.307, requires that a survey, or some other form of verification, be conducted at least every two years to confirm that the age and occupancy requirements set in the condo’s master deed and bylaws are still being satisfied. These regular surveys and updates should require occupants to provide reliable documentation of their age, such as a driver’s license, birth certificate, passport, immigration card, military identification card, any other official government records that include a birth date, or a certified statement or affidavit from the occupant verifying their current age or date of birth. HUD also advises that a condo association retain the age verification information it receives “for as long as the housing community/facility intends to proffer its exempt status.”
Therefore, when amending the master deed and bylaws to include the new age and occupancy restrictions, a condo association also will want to include an express requirement within the recorded documents that co-owners and occupants must turn over reliable documentation of their age when they sell or lease the unit and whenever requested by the condo association for verification purposes required by the Fair Housing Act and HOPA. While the Code of Federal Regulations, 24 CFR 100.307, does provide alternative ways for the condo association to verify the age of occupants within the community in the event a co-owner or occupant is unwilling or refuses to provide the requested information, including a requirement within the master deed and bylaws that the co-owners and occupants produce this information will provide the condo association with additional enforcement mechanisms, such as fines, in the event a co-owner or occupant refuses to do so.
A 55+ community that fails to establish procedures to verify age and occupancy requirements when a condo is being sold or leased and on an ongoing, regular basis faces a substantial risk if it later refuses to provide housing to an individual or family who falls under the Fair Housing Act’s definition of “familial status.” While a 55+ community does not file any paperwork or register itself as a “55+ community” with HUD, whether it is, in fact, a properly constituted 55+ community under the Fair Housing Act and HOPA comes into play when an individual or family files a housing discrimination claim based on familial status. The condo association’s status as a 55+ community serves as a defense against the discrimination claim, but, as explained by HUD, “[a] housing community’s or facility’s failure to survey or re-survey its list of occupants in accordance with its age verification procedures does not demonstrate intent to housing for older persons, and could jeopardize the housing community’s status as 55 or older housing.” Consequently, the condo association’s consistent collection and retention of documentation regarding the age and occupancy of its 55+ community is critical to avoiding potential liability under the Fair Housing Act.
There are several federal, statutory, and regulatory requirements that govern how a condo can become a 55+ community and how it can maintain that status across time. Condos that are looking to transform into or maintain their status as a 55+ community should work closely with a condo attorney knowledgeable in HOA law, condo association law, and federal and state housing laws to help put the right pieces into place and set the condo association up for success in complying with federal requirements moving forward.
Kayleigh B. Long is a senior attorney with Hirzel Law, PLC and focuses her practice in the areas of community association law and appellate litigation. Ms. Long obtained her Juris Doctor degree from Indiana University Robert H. McKinney School of Law, where she graduated in the top 5 of her class and served as the Senior Executive Editor on the Indiana Law Review. Ms. Long has been recognized as a Michigan Rising Star in Real Estate Law by Super Lawyers since 2020, an award given to no more than 2.5% of the attorneys in the State of Michigan. Ms. Long has also made numerous presentations on community association law, along with having articles published in the Michigan Real Property Review. She can be reached at (248) 986-2290 or klong@hirzellaw.com.
