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Fair Housing Compliance - What Qualifies As A Senior Living Community?

Fair Housing Compliance - What Qualifies As A Senior Living Community?

What qualifies as a senior living community? An increasing number of housing developments appear to be marketing themselves as "Active Adult" or "Empty Nester" communities.  How can that be?  "Adult Only" housing was outlawed in 1988 when President Ronald Reagan signed the Fair Housing Amendments Act (FHAA) into law.

Familial Status Exemption

Among the important changes to the original Fair Housing Act was the addition of "familial status" as a protected class. In 1988, an exemption was added to the familial status rules for properties that are able to qualify as "Housing for Older Persons." The result? Exempt properties are immune from complaints of familial status discrimination. Still, nearly three decades later, many communities that want to exclude children seem unaware or ignore the fact that they first must qualify for an exemption to be compliant with the law.
How do housing providers qualify to meet the exemption?

  • At least 80 percent of its units must be occupied by at least one person 55 years of age or older.
  • OR,  if at least one person 62 or older resides in each apartment home (100% of the homes), it is also considered a senior living community
  • Properties are required to demonstrate their "intent" to be "Housing for Older Persons."

Required Intent

How do enforcement agencies determine intent? They will look at the totality of facts. This would include the property’s policies, procedures, leases, advertising and so on. The determination of the required intent is purely a subjective opinion. And in at least one state, Florida, properties must certify their compliance with the state agency before they are considered exempt.
So when is it permissible for a property to advertise itself as being an "Active Adult" or "Empty Nester" community?

Some state and local enforcement agencies claim that using phrases such as ''Adult Living'' or ''Adult Community'' are always illegal.  They argue that using such terms is incompatible with the intent requirement.  If that’s true, then the property is leaving itself open to a fair housing complaint.  But, in our view at least, it’s not true.

HUD Cautions

It is true that HUD has cautioned properties to avoid terms like “active adult” because they are inconsistent with the intent requirement.  However, HUD is also on record as saying that the use of these terms alone does not destroy the intent requirement. If a community or facility has clearly shown its intent in other ways and meets the 80% requirement, then the intent requirement has been met.  This is true even if the phrase “all adult” or similar terminology is occasionally used.

This is not to say, however, that exempt properties should use such terms; in fact, we recommend that our clients not advertise themselves in that way, unless they want to be caught up in an expensive investigation or enforcement action.

Recommended Terms

So what terms should your property use? Well, if your property is not exempt, then terms like “active adult” and “empty nester” should never be used. If your property wishes to become exempt or wishes to keep its exempt status, then HUD (and we) recommend you use the following terms:

  • senior living community (BEST)
  • senior housing
  • housing for older persons
  • 55 and older community
  • retirement community

Another alternative we have seen is:  “A 55 and Better Community.” What terms does your community use to stay compliant?

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This comment was minimized by the moderator on the site

The other one I see a lot is "independent" living because the community wants to ensure everyone knows there are no medical or food service, but if I am confined to a wheelchair or require a live-in caregiver, am I independent? I love that you omitted that term from the list here. Call it what it is - gracious retirement living for those over 55/62, etc.

  Susan Elise Weston
This comment was minimized by the moderator on the site

I would absolutely advise against "independent" since, as you rightly point out it could be misconstrued as a preference for people who are not disabled. I believe Senior Living Community is best!

  Doug Chasick
This comment was minimized by the moderator on the site

I have a 10 story building (fully occupied) which I would like to commit some floors to "senior housing only" - These floors I would attach support bars to the shower / bathtub / toilets as well as other modifications that are targeted for seniors..... The problem and am not able to get a direct answer is if I am permitted to do that - does anyone know

  Ned Wasserstein
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I've copied and pasted the language from the HUD Senior Housing page below. The presence or absence of certain features (other than those required for post-3/13/91 buildings) is not relevant for qualifying as Senior Housing, since grab bars and other items can be for non-senior disabled persons. Seems like the only way for your building to qualify would be to implement a program where you are holding every vacant, regardless of unit type or floor, for occupancy by a household with at least one person aged 55 or older, until you have achieved an 80% occupancy of 55 and over households (as well as following the other HOPA guidelines) I suggest speaking to a fair housing attorney who is familiar with any state/local requirements in your jurisdiction as well as HOPA.

From the HUD Senior Housing page:
(https://www.hud.gov/program_offices/fair_housing_equal_opp/seniors)
Housing for Older Persons

The Fair Housing Act (FHAct) protects all residents from discrimination on the basis of race, color, national origin, religion, sex, handicap or familial status (families with children under the age of 18 living with parents or legal guardians; pregnant women and people trying to get custody of children under 18).

The "Housing for Older Persons" Exemption: The Fair Housing Act specifically exempts some senior housing facilities and communities from liability for familial status discrimination. Exempt senior housing facilities or communities can lawfully refuse to sell or rent dwellings to families with minor children. In order to qualify for the "housing for older persons" exemption, a facility or community must prove that its housing is:

Provided under any State or Federal program that HUD has determined to be specifically designed and operated to assist elderly persons (as defined in the State or Federal program); or
Intended for, and solely occupied by persons 62 years of age or older; or
Intended and operated for occupancy by persons 55 years of age or older.
In order...

I've copied and pasted the language from the HUD Senior Housing page below. The presence or absence of certain features (other than those required for post-3/13/91 buildings) is not relevant for qualifying as Senior Housing, since grab bars and other items can be for non-senior disabled persons. Seems like the only way for your building to qualify would be to implement a program where you are holding every vacant, regardless of unit type or floor, for occupancy by a household with at least one person aged 55 or older, until you have achieved an 80% occupancy of 55 and over households (as well as following the other HOPA guidelines) I suggest speaking to a fair housing attorney who is familiar with any state/local requirements in your jurisdiction as well as HOPA.

From the HUD Senior Housing page:
(https://www.hud.gov/program_offices/fair_housing_equal_opp/seniors)
Housing for Older Persons

The Fair Housing Act (FHAct) protects all residents from discrimination on the basis of race, color, national origin, religion, sex, handicap or familial status (families with children under the age of 18 living with parents or legal guardians; pregnant women and people trying to get custody of children under 18).

The "Housing for Older Persons" Exemption: The Fair Housing Act specifically exempts some senior housing facilities and communities from liability for familial status discrimination. Exempt senior housing facilities or communities can lawfully refuse to sell or rent dwellings to families with minor children. In order to qualify for the "housing for older persons" exemption, a facility or community must prove that its housing is:

Provided under any State or Federal program that HUD has determined to be specifically designed and operated to assist elderly persons (as defined in the State or Federal program); or
Intended for, and solely occupied by persons 62 years of age or older; or
Intended and operated for occupancy by persons 55 years of age or older.
In order to qualify for the "55 or older" housing exemption, a facility or community must satisfy each of the following requirements:

At least 80 percent of the units must have at least one occupant who is 55 years of age or older; and
The facility or community must publish and adhere to policies and procedures that demonstrate the intent to operate as "55 or older" housing; and
The facility or community must comply with HUD's regulatory requirements for age verification of residents.

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  Doug Chasick

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