Recently we have been approached by multiple associations inquiring about making their housing community one that is restricted to those residents that are 55 years of age or older. The ability and requirements for establishing or becoming a housing community for those 55 years of age or older is governed by the federal Housing for Older Persons Act (HOPA). The Act applies to homeowners associations and condominium associations that wish to impose this type of age requirement. HOPA is an exemption to the Fair Housing Act (FHA) which prohibits discrimination in housing-related transactions based on race, color, religion, sex, national origin, familial status, and disability. Without an exemption, limiting housing to those 55 years of age or older would be considered familial status discrimination. North Carolina has a similar exemption in its State Fair Housing Act.
HOPA provides a defense to a claim of familial status discrimination under the FHA. In order for a housing community to qualify for the HOPA exemption to the FHA, a housing community must comply with the following requirements:
- At least 80 percent of its occupied units must be occupied by at least one person 55 years of age or older; and
- The housing community must publish and adhere to policies and procedures that demonstrate an intent to be a housing community for those 55 years of age or older; and
- The housing community must comply with the Secretary of Housing and Urban Development’s requirements for age verification through reliable surveys and affidavits
It is important that the housing community hold itself out as one intended for those that are 55 years of age and older. If the community does not, and does not follow the requirements above, they are at risk of losing the protections that HOPA provides to a FHA discrimination claim. The main avenue for putting owners and potential owners on notice of the community’s intentions, especially in the world of homeowner associations and condominium associations, is through recorded Declarations of Covenants, Conditions, and Restrictions (“Restrictive Covenants”). Our Attorneys at Black, Slaughter, and Black have years of experience creating and amending Restrictive Covenants, and can work to formulate language that clearly identifies an association’s desire to have a community specifically for persons 55 years of age or older. Our Attorneys can also guide associations through developing best practices for complying with the remaining provisions of HOPA.