55+ COMMUNITIES AVOIDING PITFALLS
Steven R. Braten, Shareholder
Paula C. Marra, Senior Associate
Michael H. Casanover, Senior Associate
Federal, state, and local law generally prohibits community associations from discriminating against current or prospective residents based on age. One notable exemption is housing for older persons, which communities typically refer to as “55+” communities. A “55+” community is housing intended and operated for occupancy by persons at least 55 years old. Applicable law requires that at least 80% of the housing units are occupied by at least one person who is 55 years of age or older – sometimes referred to as the “80% Rule”. Typically, the way in which a community association establishes itself as “55+” community is via an age restriction contained in the community association’s original declaration, or a duly adopted amendment to the declaration, which is recorded in the public records of the county where the community is located.
One common area of confusion is that a housing unit in a “55+” community may be owned by someone under the age of 55 because pursuant to applicable law, the legal requirements to qualify as an age restricted community only apply to occupancy – not ownership. Consequently, an owner of a housing unit under 55 years of age may not occupy the unit without a full time co-occupant at least 55 years old. Importantly, the 80% Rule does not require the remaining 20% of the housing units be occupied by persons under 55 years old. Rather, a community association may decline to permit all units from being occupied by persons under 55 years old of and who intend to live at the property without a person at least 55 years old to the extent permitted by the terms of the age restriction contained in the community’s declaration.
Communities operating as “55 or over” communities should be mindful to safeguard their status and enforce the age restriction. Like other restrictions, your community association’s age restriction must be uniformly enforced among the residents to withstand a legal challenge. Issues arise when one occupant is less than 55 years old and another occupant is at least 55 years old. While the residency of the younger occupant may be compliant when that resident began occupancy, at a future point in time, the older resident may no longer reside at the housing unit. In such case, if the younger resident has not reached the age of 55 years old, the resident will either have to obtain an age-compliant co-resident, move from the community, or fall into a limited exception that the 20% is reserved to accommodate under the terms of the community’s age restriction.
Community associations that wish to retain their age restricted housing status as “55 or over” must publish and adhere to policies and procedures that demonstrate an intent to operate as housing for persons 55 years of age or older. The United States Department of Housing and Urban Development has published factors that are considered relevant in determining whether the housing facility has complied with this requirement, including:
- The manner in which the housing facility or community is described to prospective residents;
- Any advertising designed to attract prospective residents;
- Lease provisions;
- Written rules, regulations, covenants, deed or other restrictions;
- The maintenance and consistent application of relevant procedures;
- Actual practices of the housing facility or community, and;
- Public posting in common areas of statements describing the facility or community as housing for persons 55 years of age or older.
Most community associations require notice to the association when transferring ownership or occupancy of a housing unit or when new residents move into the community. In such a case, at that time, your association can and should determine if the new occupants comply with your community’s age restrictions. Additionally, your community association must conduct a periodic audit to verify the occupancy within the community is in compliance with the “55+” age restriction, including requiring proof of age of each adult occupant occupying each housing unit in the form of a birth certificate, driver’s license, passport, immigration card, or military identification. Other documents, including an affidavit may also be sufficient to verify age of an adult occupant.
We recognize this is a complicated area of the law. Should you have any questions or concerns regarding this area of law, please contact your association’s attorney.