Congress enacted the Fair Housing Act in 1968 to prevent housing discrimination based on race, color, religion or national origin. Congress amended the Act in 1988 to include handicapped persons and familial status (one or more persons under the age of 18 who live with a parent or guardian) as protected classes. Exemptions were created to allow for age-restricted communities which are sometimes called the Housing For Older Persons Act (HOPA). Two types of age-restricted communities are permitted by the Fair Housing Act. The first permits discrimination where at least 80% of the units are occupied by at least one person 55 years of age or older. The second type permits discrimination when a community has 100% of its units occupied by persons 62 years of age or older.

Under the current law, to qualify for an exemption, a community must be able to produce, in response to a complaint filed under the law, verification of compliance with the Federal Regulation Sec. 100.305 through reliable surveys and affidavits. The verification must show that the community:

· Is intended and operated for occupancy by persons 55 years of age or older, and

· At least 80 percent of the units are occupied by at least one person who is 55 years of age or older; and

· It provides for age verification by reliable surveys and affidavits; and

· It has published and adheres to policies and procedures that demonstrate its intent to qualify for the exemption.

Here are a few suggestions to help maintain your exemption:

Understand the 80/20 Rule

Be certain that for no fewer than 80 percent of the units are occupied by at least one occupant who is 55 or older. Do not make the mistake of allowing occupants who do not comply simply because there is "room" in the 20 percent. That will violate another section of the law.

HOPA is Concerned with Occupancy, Not Ownership

The Act concerns itself with who occupies the unit, not who owns the unit. If an owner is 55 or older but leases his unit to a resident who is not yet 55, that unit must be counted as a unit that does not meet the age requirement. Your documents might concern itself with ownership of the unit, but the Act only considers occupancy.

Demonstrate the Intent to Comply

To demonstrate that the community intends to operate as housing for older people, the declaration of condominium or covenants and restrictions, resolutions must include the age restriction. There should be procedures for verifying the age of residents, disclosures in marketing and resale materials, leasing provisions and signage indicating the name of the community and notice that it is a community for persons 55 and older.

Implement Procedures to Maintain Proof of Age Materials

To comply with HOPA, a community must develop reliable surveys and affidavits that establish the age of the units' occupants. Procedures must be adopted to ensure that at least one occupant is at least 55 years of age or older for 80 percent of the units. Acceptable proof of age includes driver licenses, passports, immigration cards, military identification cards, birth certificates and other government documents that show a date of birth. If an occupant refuses to provide proof of age, an affidavit from a person, not in the household, who has personal knowledge that the resident is at least 55 years of age or older is acceptable. Verification of occupant ages must be completed at least every two years to ensure that your community is within the acceptable 80/20 required ratio.

Failure to comply with the provisions of the Fair Housing Act and Housing for Older Persons Act will result in loss of protected status. If the loss of the exemption occurs, the community may no longer restrict the occupancy of the units to persons under 55. Consult with your association attorney to make sure you do not lose your valuable exemption.

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