The federal and state Fair Housing Acts (“FHA”) prohibit discrimination on the basis of, among other things, “familial status.” However, some homeowners' association governing documents include deed restrictions that require residents to be of a certain age (usually 55 or older) in order to occupy a property. This type of community operates as an exception to the FHA's general rule against discrimination governed by the Housing for Older Persons Act (“HOPA”). This FHA exception authorizes a community to reserve its properties for residents 55 or older provided the community satisfies three requirements: (1) at least 80 percent of the occupied lots/units are occupied by at least one person who is 55 years of age or older; (2) the community publishes and adheres to policies and procedures that demonstrate the intent to provide housing for older persons (typically contained within the CC&Rs); and (3) the community complies with federal rules for verification of occupancy. NOTE: The HOPA exemption does not protect the community from liability for housing discrimination based on race, color, religion, sex, disability, or national origin.
Based on these requirements, Board members within an age-restricted homeowners' association must ensure that at least 80 percent of the lots/units are occupied by at least one person 55 or older. We recognize that many age restrictions or MORE RESTRICTIVE and may entirely prohibit individuals under the age of 55 from occupying a property. This type of heightened restriction is permissible pursuant to HOPA as the HOPA guidelines simply establishes a minimum requirement to qualify for the exemption from the FHA's general rules against familial status discrimination. Provided the minimum standards are met, the association is authorized to enforce the age restriction as drafted.
To that end, associations must take the appropriate steps to comply with the age verification requirements and timely enforce the restrictions. Pursuant to 24 C.F.R. § 100.307, federal regulations contemplate a verification policy under which the association: (1) acquires records of residents' ages upon purchase of a home in the community; (2) verifies the ages of residents every two years through a survey; (3) provides alternative evidence of age if residents fail to respond; and (4) maintains summaries of each survey in the Association's records. Accordingly, we recommend that all age restricted associations develop a policy that requires new residents to complete a form or application stating their ages and providing the association a copy of one of the following: a driver's license, birth certificate, passport, immigration card, military identification, any other state, local, national, or international official document with an equally reliable date of birth or a signed certification in the application or an affidavit stating that a member of the household meets the age requirement and a policy to issue a survey at least every two years to verify continued age appropriate occupancy. Please be advised, however, that no specific document is required and the association is precluded from requiring an occupant to produce a specific document (e.g. requiring that all occupants produce a birth certificate or driver's license at the exclusion of the other permissible means of age verification). When updating the survey every two years, a community need not re-obtain copies of all supporting documents, particularly those documents that remain accurate long-term (such as, if obtained, birth certificates). The community need only review its files and confirm that those persons counted as occupying units for purposes of meeting the 80% requirement are still in occupancy.
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