Some communities provide housing for persons of a certain age (usually 55) or older, and may also exclude persons under the age of 18. This type of community is governed by the Housing for Older Persons Act (HOPA), part of the federal Fair Housing Act (FHA). The FHA prohibits discrimination in the rental and sale of housing on the basis of, among other things, “familial status.” HOPA operates as an exception to the FHA’s general rule against discrimination.
Under HOPA, such a community may prohibit residents under age 18, and may reserve its units for residents 55 or older, if the community satisfies three requirements. The housing must (1) have at least 80 percent of the occupied units occupied by at least one person who is 55 years of age or older; (2) publish and adhere to policies and procedures that demonstrate the intent to provide housing for older persons; and (3) comply with federal rules for verification of occupancy.
The first requirement is crucially important. To properly comply with HOPA, an association must “provide for verification by reliable surveys and affidavits” that at least 80% of the units are occupied by a person 55 or older, and must update the survey every two years. The kinds of documents that suffice for the verification requirement include, among other things, birth certificates and driver’s licenses; however, no specific document is mandatory, and a community may not insist on being provided birth certificates or driver’s licenses. Instead, a community may simply require that a member of each household who is age 18 or older sign an affidavit asserting that at least one person in the unit is 55 years of age or older.
When updating the survey every two years, a community need not re-obtain copies of all supporting documents, particularly those documents that remain accurate long-term (such as, if obtained, birth certificates). The community need only review its files and confirm that those persons counted as occupying units for purposes of meeting the 80% requirement are still in occupancy.
A community that is not already a HOPA community may convert to one by complying with all three of the criteria set forth above. However, the community may not discriminate against families with children while waiting for 80% of its units to become occupied by at least one person over 55, may not discourage families with children from renting or buying units, may not amend its governing documents to provide that it is a senior housing community, may not reserve units for seniors, and may not publicly advertise itself as a senior housing community until the 80% residency requirement is met. Then, the community may convert to senior housing by meeting the other two requirements (publishing policies and procedures demonstrating the requisite intent and complying with the age verification procedures).
As in all matters affecting community associations, it is important to check your governing documents and consult with your association’s counsel if you have any questions.
