Under the Fair Housing Act, as amended by the Housing for Older Persons Act, a community can qualify for the housing-for-older-persons exemption, and refuse occupancy to residents that fail to meet the age restrictions, provided that three requirements are met:
1. At least 80% of the occupied units are occupied by at least one person who is 55 years of age or older. There is often a misconception that ownership of dwellings in adult communities is subject to the applicable age restrictions. To the contrary, only occupancy is restricted under the law. It is important to note, however, that state legislation, local zoning ordinances and an Association's governing documents may impose age restrictions which are more restrictive than federal guidelines so long as they meet the federal exemption requirement.
2. The housing community must publish and adhere to policies and procedures that demonstrate an intent to operate as 55 or older housing. Some factors that are considered relevant are:
- Is the housing community described as an age 55 or older housing community in advertising and to prospective residents?
- Does the housing community maintain and consistently apply procedures used for verifying age and occupancy?
- Do all lease provisions, rental agreements, rules, regulations, covenants and/or deeds indicate that the community is 55 or older housing?
3. A procedure for age verification should be developed and followed. The community must compile a list of occupants and verify the ages of the occupants. A variety of documents are considered reliable as age verification documentation, including a birth certificate, a driver's license or a passport. The community should re-survey its lists of residents at least every two years to ensure that the 80% requirement, or higher standard set forth in the Declaration is met.
The drafting, interpretation and enforcement of age restrictions can be challenging. While there is no guaranteed insulation from lawsuits, a 55+ housing community is well advised to have its policies and procedures reviewed by competent legal counsel. With competent advice, you will be in the best position to meet any potential legal challenge to the age restriction.