What Do You Mean We Cannot Enforce the Association’s 55-and-Older Provision?

By JoAnn Nesta Burnett / Published March 2024

While the Fair Housing Act (FHA) protects all citizens from discrimination on the basis of race, color, national origin, religion, sex, and disability 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), there is an exemption under the Housing for Older Persons Act (“HOPA”).

     HOPA provides that housing that meets the FHA’s definition of “housing for older persons” is exempt from the law’s familial status requirement, provided that the following requirements are met:

1. It is occupied solely by persons who are 62 years of age or older or
2. It houses at least one person who is 55 years of age or older in at least 80 percent of the occupied units and adheres to a policy that demonstrates an intent to house persons who are 55 years of age or older.

     In order to qualify for an exemption to the familial status laws, a community must satisfy either 1 or 2 above, not both. The majority of communities that fall within the exemption are 55-or-older communities. In addition to the requirement that at least 80 percent of the units be occupied by a person 55 or older, the community must also publish and adhere to policies and procedures that demonstrate an intent to be a provider of housing for older persons. The community must also comply with rules established by the Department of Housing and Urban Development (“HUD”) for verification of occupancy, which includes biennial age surveys of occupants.

     Although HOPA established a minimum threshold that at least 80 percent of the units be occupied by a person 55 or older, the community may set forth more stringent requirements. Many people misinterpret HOPA and incorrectly believe that once a community reaches 80 percent occupancy of units by a person 55 or older, the community must allow people below the age of 55 to occupy the remaining 20 percent. While associations generally have the ability to grant “hardship exceptions,” the community is under no obligation to do so. In fact, in most cases, communities should adhere to strict enforcement of the 55-and-older requirement, reserving the 20 percent buffer for situations in which a 55-or-older spouse dies and an underage spouse will continue to occupy the unit, inheritance, or a similar situation. In some cases an association’s governing documents do not permit hardship exceptions at all, or in limited situations, only for children under 18.

Photo by iStockphoto.com/PeopleImages

     Associations are faced with a number of underage family members and friends attempting to occupy units in 55-and-older communities without someone who is 55 years of age or older. Sometimes the units are vacation or seasonal units that sit vacant most of the year. The owner allows a friend or family member to take up residence despite his/her age. In other cases someone 55 or older purchases the unit and submits an application for occupancy, stating that he/she will occupy the unit, when in fact the unit is being purchased for an underage family member and the owner has no intention of residing in the unit. Whatever the underlying circumstances might be, the association is faced with enforcing the 55-or-older provision.

     Recently we have encountered a number of associations trying to enforce the 55-and-older restriction due to a violation. However, when we inquire if the association has a current survey, many boards are unaware that a formal survey must be conducted every two years in order to maintain the 55-and-older exemption. 

     The association is required to engage in appropriate age verification procedures designed to ensure that future occupancy complies with the 55-and-over requirements. Verification procedures are found at 24 C.F.R. Section 100.307, and state:

     100.307 Verification of occupancy.

     (a) In order for a housing facility or community to qualify as housing for persons 55 years of age or older, it must be able to produce, in response to a complaint filed under this title, verification of compliance with §100.305 through reliable surveys and affidavits….

     (c) The procedures described in paragraph (b) of this section must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place at least once every two years. A survey may include information regarding whether any units are occupied by persons described in paragraphs (e)(1), (e)(3), and (e)(4) of § 100.305.

     (d) Any of the following documents are considered reliable documentation of the age of the occupants of the housing facility or community:

1. Driver’s license
2. Birth certificate
3. Passport
4. Immigration card
5. Military identification
6. Any other state, local, national, or international official documents containing a birth date of comparable reliability or
7. A certification in a lease, application, affidavit, or other document signed by any member of the household age 18 or older asserting that at least one person in the unit is 55 years of age or older.

     (g) If the occupants of a particular dwelling unit refuse to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older. Such evidence may include the following:

1. Government records or documents, such as a local household census
2. Prior forms or applications
3. A statement from an individual who has personal knowledge of the age of the occupants. The individual’s statement must set forth the basis for such knowledge and be signed under the penalty of perjury.

     (h) Surveys and verification procedures which comply with the requirements of this section shall be admissible in administrative and judicial proceedings for the purpose of verifying occupancy.

     (i) A summary of occupancy surveys shall be available for inspection upon reasonable notice and request by any person.

     This means that the association is required to verify the accuracy of the information regarding the ages of the occupants in each home by performing a survey or census on a biannual (every two years) basis and require the homeowner submit affidavits verifying the information they provide. The association cannot rely on prior affidavits or documents within a file without first attempting to obtain a current affidavit. Without this survey in place every two years, the association may likely be unable to enforce its 55-and-older restriction until such time as a proper census is conducted. The failure to timely conduct the survey may lead to people under 55 being able to occupy units within the community and the unenforceability of the restriction. If you have questions concerning the procedures to follow to conduct a proper survey, you should contact your community association attorney.

JoAnn Nesta Burnett

Senior Attorney, Becker

     Ms. Burnett concentrates her practice in state and federal appellate practice and procedure, complex commercial litigation, and civil litigation, including fair housing discrimination, association litigation, and general business litigation. Ms. Burnett has represented numerous association clients in defending discrimination complaints based upon alleged fair housing violations before local, county agencies and in State and Federal Court. Ms. Burnett has extensive experience in representing association clients in covenant enforcement cases in arbitration and State Court proceedings. Additionally, Ms. Burnett has experience with collections and foreclosures. For more information, call 954-987-7550, email jburnett@beckerlawyer.com, or visit www.beckerlawyers.com.