As a country of laws, the United States has gone to great lengths to ferret out and eliminate discrimination, having deemed it antithetical to a free and fair society. Federal and state statutes are replete with anti-discrimination laws that affect virtually every facet of modern life. Interestingly, and perhaps ironically, one such law that was enacted primarily to eliminate discrimination expressly legalizes it against a particular group – the “young.”
Title VIII of the Civil Rights Act of 1968, known as the Federal Fair Housing Act (FHA), protects all citizens from discrimination in housing and real estate-related transactions on the basis of race, color, national origin, religion, sex, handicap, or familial status. The prohibition against discrimination on the basis of familial status, including an exemption for “older” persons, was added to the FHA in 1989. However, unclear drafting of the exemption led to significant confusion regarding its interpretation. In 1995, the confusion surrounding the exemption was addressed by the Housing for Older Persons Act (HOPA). Under the HOPA, the FHA’s prohibition against discrimination on the basis of familial status does not apply with respect to “housing for older persons,” a designation that includes condominiums. As a result, this exemption essentially gives a condominium association the authority to exclude “young people” from living in a community.
The HOPA designates three types of housing communities as eligible for consideration as “housing for older persons,” thereby qualifying them for the exemption from the FHA’s anti-discrimination provisions. The first type includes housing provided under any state or federal program that is specifically designated and operated to assist elderly persons. The second type includes housing that is intended for and solely occupied by, persons 62 years of age or older. The third type is housing for persons 55 years of age or older, the category into which some condominiums fall.
To qualify for the HOPA’s third type of exempt housing, the community must be intended and operated for occupancy by persons 55 years of age or older. The following factors may be considered relevant when determining whether or not a community has exhibited the necessary intent to operate as housing for persons at least 55 years of age:
- The manner in which the community is described to prospective residents;
- Any advertising designed to attract prospective residents to the community (although phrases such as “adult living” or “adult community” are insufficient to meet this requirement);
- Lease provisions;
- Written rules, regulations, or covenants adopted by the community;
- The maintaining and applying of relevant procedures to community governance;
- The community’s actual practices; and
- Public postings in the community’s common areas.
This intent must also be evidenced by published policies and procedures to which the community adheres.
In addition to displaying the requisite intent, at least 80% of the occupied units must be occupied by at least one person who is 55 years of age or older. To calculate this figure, the total number of units in the community must be counted. From that number, the following units should be excluded from the calculation of the 80% requirement:
- Units that have been continuously occupied by the same residents since September 13, 1998, none of whom are or were 55 years of age or older;
- Unoccupied units;
- Units occupied by employees of the community who are under the age of 55 and who provide substantial management and maintenance services to the community; and
- Units occupied solely by persons who are necessary or essential to provide medical or health and nursing care services as a reasonable accommodation to residents.
From the remaining units, the percentage of units that are occupied by at least one person age 55 or older should be calculated.
The community must also comply with any applicable rules governing the verification of these occupancy requirements. Generally, verification of compliance with the 80% requirement must be done using reliable surveys and affidavits. Additionally, the validity of such information, whether obtained through surveys or other means, must be verified at least once every two years. The HOPA also contains several safe-harbor provisions that protect the designation as “housing for older persons.”
In addition to the HOPA, states have similarly exempted “housing for older persons” from their own anti-retaliation laws. For example, Florida’s Fair Housing Act and Georgia’s Fair Housing laws use language that is virtually identical to the HOPA with regard to exempting housing for older persons. Additionally, those communities that wish to be recognized as exempt “housing for older persons” may need to register with the appropriate state administrative office, such as the state of Florida’s Commission of Human Relations.
Despite its discriminatory effect, the HOPA has survived constitutional challenges because courts have held that Congress acted reasonably in enacting the HOPA to protect the interests “of senior citizens who live in retirement communities,” many of whom may have a particular need for an affordable, safe, and supportive environment. The exemption provided by the HOPA allows these communities to devote more resources to facilities and services for older persons, and fewer if any resources for schools, daycare facilities, and child safety programs. These are but some of the social benefits provided by this unique type of discrimination in the housing context.
Condominiums seeking to implement or maintain a community that provides “housing for older persons” have to jump through many procedural, and, depending on applicable state law, administrative hoops. However, since the HOPA runs contrary to the nation’s deep-rooted egalitarian ideals, such policing measures are certainly appropriate when permitting forms of discrimination not usually tolerated in other contexts.