Issue link: https://read.dmtmag.com/i/112125
COMMUNITY LAW Maintaining An Age 55 & Over Senior Exemption In A Challenging Housing Market BY ROBERT G. WILLIAMSON, JR. Brief Fair Housing Background ment (HUD) in HUD���s final rule implementing its owners thus desire to take advantage of HOPA���s The federal Fair Housing Act (FHA) which pro- HOPA regulations put it, ���In short, HOPA was ���20% flexibility��� discretionary element in order to hibits, among other things, discrimination in the passed in order to protect senior housing.���5 fill their community. In considering this approach, rental or sale of manufactured housing on the basis HOPA requires that a manufactured housing or however, there are practical issues and potential of race, color, religion, sex, or national origin is mobile home community claiming the 55 and older pitfalls implementing this apparent emerging market well known.1 Equally well known is that in 1988, senior exemption show three factors: (1) That the driven strategy which must be carefully considered Congress enacted the Fair Housing Amendments housing be intended and operated for persons 55 and closely reviewed based on the dynamics of the Act (FHAA), which amended FHA to prohibit years of age or older; (2) that at least 80 percent of particular community. discrimination on the basis of familial status. It also the occupied units be occupied by at least one perApplying the 20% Flexibility Element created an exemption to this prohibition in favor of son who is 55 years of age or older; and (3) comHOPA's exemption from the prohibition against ���housing for older persons.���2 This permitted com- munity or park publish and adhere to policies and discrimination based on familial status requires that munities imposing residency age restrictions to re- procedures that demonstrate its intent to qualify for ���at least 80 percent of the occupied units are occumain age restricted as ���housing for older persons��� the exemption. The community or park must also pied by at least one person who is 55 years of age or provided FHAA older.���7 The issue is: requirements were What about the remainsatisfied. ing 20% of the occupied While occupancy/age verification compliance is an important units, often referred to as But, manufactured housing factor, this article focuses on maintaining 80% occupancy by per- the 80/20 split? community and Under FHAA, HUD mobile home park sons age 55 or over. The obvious solution to maintaining 80% sen- recognized the original owners initially examples cited by Conior occupancy is, of course, drafting your community���s residency gress for justification of struggled, in many instances through the 20% element or documents to expressly limit residency to persons age 55 or older. ���split��� were circumlitigation, with interpreting and imstances where a person plementing the under the age of 55 inFHAA requirements in attempts to satisfy the sen- comply with age verification rules of occupancy is- herits a unit or where a surviving spouse of a qualior exemption. The FHAA requirement that ex- sued by HUD.6 ified resident was under age 55. However, under While occupancy/age verification compliance is its final rule implementing HOPA, HUD made empted housing for persons age 55 or older had to provide ���significant facilities and services specifically an important factor, this article focuses on main- clear that it, ���does not consider these to be the only designed to meet the physical or social needs of taining 80% occupancy by persons age 55 or over. appropriate uses of the flexibility provided by the up older persons��� was the main offender. Congress re- The obvious solution to maintaining 80% senior oc- to 20% allowed by the exemption���.���8 Rather, cupancy is, of course, drafting your community���s HUD issued its policy statements that, ���the approsponded. In 1995 Congress enacted the Housing for Older residency documents to expressly limit residency to priate use of the 20% is at the discretion of the comPersons Act (HOPA) that amended FHAA.3 persons age 55 or older. munity��� and [HUD] does not intend to impose In a difficult housing market, however, where more specific requirements in this HOPA���s purpose and goal was to clarify the law ���making it more workable��� and easier to determine economic pressures have increased both vacancy area��� provided that the ���80%��� rewhether a community qualified for the exemption rates and prospective purchasers and renters under quirement is satisfied and the disby, among other things, eliminating the ���services age 55, there is the temptation to allow, or con- cretionary 20% ���requirements are and facilities��� requirement.4 As the Secretary for tinue to allow, persons under the age 55 to rent and not inconsistent with the overall intent to be housthe Department of Housing and Urban Develop- own in your senior community. Many community ing for older persons.���9 28 \ MARCH 2013 26 THE JOURNAL