News & Resources
Clarifying the Myths About Senior Housing
There are many questions regarding age 55+ housing. This article seeks to clarify some of the more common issues for landlords, developers, tenants and homebuyers.
I have recently received so many questions regarding age 55+ housing that it is obvious that there are many issues and items of confusion regarding housing for older people. I therefore decided to write a series of articles dealing with some of the most common issues and questions.
What Qualifies as Age 55+ Housing
In the late 1960s, the United States Congress enacted the Federal Housing Act to prohibit landlords from discriminating against tenants on the basis of race, religion and national origin. Later, gender was added as a protected class. In 1988, Congress enacted the Fair Housing Amendments Act which amended the Fair Housing Act and prohibited discrimination by landlords on the basis of familial status. It was the intent of Congress to protect families with children against discrimination. However, Congress also provided an exemption for retirement type communities.
Under the exemption to the Fair Housing Amendments Act, a landlord intending to operate as housing for older persons was legally permitted to discriminate against tenants on the basis of age and familial status if either 80% of the dwellings were occupied by at least one person age 55 or older and the landlord provided “significant services and facilities” designed for older persons, or if the housing community was reserved exclusively for persons who were age 62 or older. As time went by, there was a lot of controversy as to what constituted “significant services and facilities.” As a result, Congress subsequently enacted the Housing for Older Persons’ Act, which eliminated the “significant facilities and services” requirement.
Congress recognized that there were numerous benefits to having housing for older people, particularly for manufactured home communities. Various courts have recognized the benefits and unique attributes as well. For example, the courts noted that manufactured home communities typically offer smaller housing units than conventional housing, with smaller lots, and that this typically limits the room for children and restricts privacy. The courts also recognized that manufactured home communities could provide more affordable housing, as compared to site built homes, which would be particularly attractive to those who are on fixed incomes. It could also be more costly to render such communities safe for children as opposed to adults.
Today, in order to qualify as an age 55+ community, at least 80% of the occupied units must have a resident who is age 55 or older. There is no need to provide significant facilities and services for older people. In addition to maintaining the 80/20 age requirement ratio, age 55+ communities must also demonstrate their “intent” to operate as an age 55+ community (through the park’s documents and policies), and the landlord must comply with age verification requirements. However, a landlord cannot evict families with children or terminate there leases in order to achieve the 80% age 55+ ratio.
Good Faith Defense Against Civil Money Damages
If you do not qualify as housing for older people and you discriminate against families with children, you can be sued and significant damages and penalties can be assessed against you. The Housing for Older Persons’ Act provides a good faith defense against civil lawsuits and money damages for landlords who, in good faith, rely on the Housing for Older Persons’ exemption, even if the community does not technically qualify for the exemption. Generally, a person may use the good faith defense if they had no actual knowledge that their community was not eligible for the age 55+ exemption (typically as a result of a mistake or misunderstanding) and the community had formally stated, in writing, that it complied with the age 55+ exemptions.
Managing an Age 55+ Community
The laws do not provide specific standards for operating age 55+ communities. The law only provides guidance as to what is necessary to qualify for the age 55+ exemption. Therefore, the relationship between the landlord and tenant is predominantly governed by the private contractual documents (such as the rental agreement, rules and regulations, etc.) between the landlord and tenants. This gives the landlord great latitude to determine how the community will function and be controlled.
Minimum Age Requirements
The Housing for Older Persons’ Act does not prohibit minors under 18 years of age from residing in or visiting age 55+ communities. Similarly, the Housing for Older Persons Act does not require a landlord to allow minors. Although the government encourages sensible and compassionate policies, landlords are free to set the minimum age for residents who are authorized to reside in their community provided that the landlord still requires 80% of the occupied homes to have at least one primary resident age 55 or older. Landlords therefore have great discretion to enact age requirements that best serve their community.
What About the 20% of the Homes that Are Not Occupied by a Person Age 55?
Although 80% of the occupied home must have at least one resident who is age 55, what about the remaining 20% of the homes? There is no specific law that requires the remaining 20% of the occupied units to be occupied by a person who is age 55 or older. Landlords therefore have some flexibility regarding occupancy. Landlords can require 100% of the units to have at least one occupant who is at least age 55, they may allow up to 20% of the units to be occupied by persons who are below age 55, or the landlord can set virtually any reasonable requirement they desire, provided that at least 80% of the occupied units are occupied by at least one person age 55 or older and provided that the community continues to demonstrate its general overall intent to serve as housing for older persons. As a precaution, I would recommend that Landlords insert provisions in their rental documents disclosing their rights regarding the 20% so that other residents are not shocked or upset if every home does not have a primary occupant who is at least age 55.
Originally, Congress contemplated that the 20% portion might apply to a younger person who inherits a manufactured home or a surviving spouse under age 55, but, those are not the only permitted uses for the 20%. It was the opinion of the Department of Housing and Urban Development that a landlord can do as he pleases with the 20%. For example a landlord could allow a certain percentage of home sites to be rented to people over the age of 45, as long as the community retains its overall intent to be housing for older persons. However, HUD would be objectionable if that category of people were segregated to a particular area of the community. Further, to play it safe, landlords should avoid having anywhere near 20% of the homes occupied by persons under age 55. Dropping below the 80/20 ratio can jeopardize the parks classification and exemption as housing for older people.
The Proper Name for Housing Older People
So, what can you legally call a community that meets the requirements for housing for older persons? According to HUD, the proper terminology to use is “a 55 and older community,” “an age 55+ community,” “senior housing” or “a retirement community.” HUD frowns on the use of terminology such as “adult living,” “adult community,” “adult housing” or similar phrases.
One of the critical aspects of meeting the requirements for an age 55+ community is periodic age verification. If a landlord fails to follow the law and periodically verify the ages of its residents, the landlord can lose its age restrictive exemption and can be subject to lawsuits for discrimination and damages by families as well as state and federal agencies.
As noted in my prior articles, Parts I and II, a landlord must verify the ages of its residents through reliable surveys, affidavits or other appropriate documentation to confirm that the 80% age fifty five threshold is met by the community. A tenant’s self‑certification of his/her age is typically acceptable to meet the standard. Likewise, an affidavit of a reliable person who knows the age of the occupant and provides a basis for knowing their age is also satisfactory. The following types of documents can be appropriate for verifying age: driver’s license; Passport; Immigration Documents; Affidavit; or Third Party Statements verifying age (under penalty of perjury). A copy of the supporting documents should be retained by the landlord for record keeping purposes.
If a landlord is concerned about misrepresentations as to age, the landlord may require residents to provide affidavits signed under oath or under penalty of perjury. If an age verification statement is being obtained from a third‑party, that statement must be made under oath and subject to the penalty of perjury.
Every two years, an age 55+ community must re‑verify the age requirements of its residents. However, the re‑verification does not require the landlord to go out and get all new supporting documentation. The landlord is allowed to merely confirm that the residents who were initially confirmed for age verification purposes still reside in the community. Thus, if Mrs. Smith provided a copy of her driver’ license two years ago, verifying that she was 60 years of age, the landlord need not require her to once again produce her drivers license. Instead, the landlord can merely re‑verify that Mrs. Smith still resides in the community.
The landlord must then maintain a summary of the information that has been gathered to support the occupancy verification. Although copies of the supporting documents should be maintained in the landlord’s file for verification purposes, the summary should be in a separate file, merely “summarizing” the age verification information and the process that was used to confirm the age requirements. Various governmental agencies may review that summary if investigating fair housing issues and age 55+ compliance. Except in rare circumstances, only the general summary survey is required to be produced for review by fair housing enforcement agencies, not the underlying support documents.
Age 55+ communities should have a methodical, yet simple, process for verifying age on a periodic basis. Failing to do so can destroy the community’s ability to operate as housing for older people. The best time to obtain good age verification documentation is when a tenant first applies for residency. The tenant then has an incentive to be cooperative. Thereafter, a landlord need only periodically reconfirm every two years that the qualified resident still resides in the community. Although a landlord can certainly request age verification documentation from its residence at the time of re‑surveying the community, the landlord should consider bolstering its rental agreement or rules and regulations to impose such a requirement on the residents, specifically stating the types of documentation or information that may be requested by the landlord, the manner of collection of the information, etc. Although, such provisions are beneficial, they are not fatal if not contained in the documents.
If an age 55+ community establishes a minimum allowable age threshold for residents or occupants, must the landlord nonetheless make reasonable accommodations to allow occupants who are below that age threshold? Numerous issues have arisen regarding whether an age 55+community must allow an underage person to live with another tenant who meets the age requirements, based on the needs of either the younger person or older person. Many landlords have applied their minimum age requirements strictly and without exception. However, such a policy can run afoul of the law.
In one case, an age 55+ community, which was governed by a homeowners association, required at least one permanent resident to be at least age 55 and a minimum age of 35 for any other residents of the same home. In other words, even though at least one resident had to be age 55 or older, the other residents could be as young as age 35. A husband and wife, who were both over age 55, sought the association’s permission to allow their disabled son, who was only 26 years old, to reside with them because of his disability and his parents’ need to care for him.
The homeowners association, relying on the minimum 35 year age restriction in its documents, refused to permit the residents’ 26 year old son to reside in the community. The parents then filed a discrimination lawsuit against the association. The trial court ruled in favor of the homeowners association, concluding that the age restriction was a legally authorized form of discrimination, because the home was located within a qualified age 55+ community. However, an Appellate Court reversed that decision and concluded that the association’s actions constituted a failure to reasonably accommodate the needs of the residents’ son. While the Court acknowledged the validity of the age restriction for the community, the Court concluded that the age restriction, in and of itself, did not authorize discrimination based on a disability.
Under the federal Fair Housing Act of 1988, it is against the law to discriminate in the rental of a dwelling because of the handicap of the buyer, renter or a person associated with or residing with the buyer or renter. Discrimination includes a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person an equal opportunity to use and enjoy a dwelling. Although housing for older persons is exempt from the prohibition against discriminating based on age and familial status, neither state or federal fair housing laws exempt such communities from the laws that prohibit discrimination against disabled persons. Thus, the disabilities laws and the fair housing laws must work in conjunction of each other, which is not always an easy reconciliation.
Recognizing that the federal Fair Housing Act imposes a duty on landlords to provide reasonable accommodations for persons with disabilities, landlords may need to reassess their rules and policies, and possibly change or make exceptions to otherwise valid policies in order to minimize the burden on handicapped individuals. Courts have indicated that one of the purposes behind the law requiring reasonable accommodations is to address the needs of individuals and to respond to individual circumstances. For instance, one Federal court stated, as an example of a reasonable accommodation, that the landlord should simply not enforce a restrictive covenant if it prevents a disabled person from living in the community. The Court stated:
“[E]ven if there was a consistent policy and practice of enforcing the restrictive covenant against perceived violations, the Court finds that under the facts of this case the attempt to enforce the covenant constituted a refusal to make a ‘reasonable accommodation’ necessary to afford plaintiffs an equal opportunity to use and enjoy a dwelling.”
Generally, in order for a resident or victim to succeed in pursuing a claim against a landlord, the aggrieved individual must show that without an appropriate accommodation, they would likely be denied an equal opportunity to enjoy housing of their own choice.
So, what constitutes a “reasonable” accommodation? As usual, there is no clear rule or list to follow. However, a request for an accommodation is generally considered “reasonable” unless it requires a fundamental alteration in the nature of a program or imposes undue financial or administrative burdens on the landlord. In the case referenced above, the homeowners association asserted that if it failed to enforce its age restrictions against the 26 year old son, and allowed the underage person to live with his parents, it would jeopardize the community’s status as housing for older persons. The Court disagreed and pointed out the fallacy of that argument. First, the presence of the underage person would not have had any impact on the 80%‑20% age requirement, since the parents exceeded the age 55+ threshold. Second, permitting the young man to reside with his parents would not destroy the “intent” of the association to serve as housing for older persons. Merely allowing the disabled, underage adult to live with his parents was not indicative of an intent to abandon such purpose.
Requests for reasonable accommodations involving unique circumstances are often difficult for landlords to evaluate, particularly since each scenario must be evaluated on its own facts. Likewise, what constitutes a “reasonable accommodation” must also be determined on a case by case basis. If a requested accommodation would neither fundamentally alter the nature of a program, nor cause undue burdens on the landlord, the landlord must grant the accommodation. Failure to grant such an accommodation can expose the landlord to a housing discrimination lawsuit. If you are grappling with such a situation and are unsure how to address it, you would be wise to seek legal advice so as to comply with the law and minimize the chance of being sued.