Pursuant to the Housing for Older Persons Act of 1995, the Department of Housing and Urban Development (HUD) was ordered by Congress to develop additional rules to clarify the procedures that need to be used by associations in calculating and documenting the 80 percent occupancy requirement, and the types of written policies and procedures that will be examined in the event of a challenge to the housing for older persons (HFOP) status of a community.

As most communities are aware, the 1995 amendments to the Fair Housing Act deleted the requirement for "significant facilities and services", and also provided protection from liability for persons seeking in good faith to enforce age restrictions, based upon the belief that a community qualifies as housing for older persons. This was an important step toward eliminating the tremendous uncertainty that existed under the prior laws.

HUD published proposed regulations in January, 1997, in response to the 1995 amendments, with comments to be submitted on or before March 17, 1997. After a lengthy delay due to a number of factors, the final rules have been adopted by HUD effective May 3, 1999.

Some of the highlights of the new rules include the following:

A. The rules clarify how the total number of occupied units in the community should be calculated, for purposes of determining whether 80 percent of these units are occupied by 1 person 55 years of age or older. For example, the rules provide that any units occupied by employees, and persons under 55 with disabilities that are granted an exception as a reasonable accommodation, are to be excluded from the total number of units to be counted, as well as unoccupied units. Also, units that are temporarily vacant (which is a common situation in Florida) are to be counted as part of the occupied units, if the primary occupant resided in the unit during the past year, and intends to return to the unit on a periodic basis.

B. In regard to policies and procedures that are to be followed by communities, the rules indicate that "public posting in common areas of statements describing the facility or community as housing for persons 55 years of age or older" is one of the factors to be considered. Communities should therefore post a notice or sign in public areas regarding the status of the community as a "55 and older" community, "senior housing" or "retirement community".

C. In terms of verification of occupancy, the rules have been considerably liberalized and clarified. All communities are required to develop and adopt procedures for routinely determining the occupancy of each unit, including regular updates of occupancy surveys at least every two years. In terms of the type of documentation that is considered to be reliable, in addition

to drivers’ licenses and other official documents containing a birth date, the rules will now allow a "certification in a lease, application, affidavit or other document signed by a member of the household age 18 or older asserting that at least one person in the unit is 55 years of age or older". All communities should therefore include such certification language in all applications, and should require that all leases contain a certificate as well.

The rules go even further, by providing that if the occupants of a unit will not provide the community with the age of the occupants, the community can rely upon an affidavit signed by someone with personal knowledge relating to the age of the occupants of the unit, or any statement contained in prior forms or applications, or in government records, which would tend to substantiate that at least one occupant is 55 years of age or older. The new rules further indicate that documentation and surveys compiled in accordance with the rules will be admissible in any administrative or judicial proceeding, thereby addressing a difficult proof problem that previously existed. A summary of the occupancy surveys is to be available for inspection on request, although the supporting information and documentation regarding ages of occupants may be retained in a separate confidential file.

D. The new rules, and the accompanying comments, provide considerable detail in regard to one of the most controversial issues under this law -- the 20 percent of homes not required to be occupied by someone 55 or older. The rules now specifically state, in Section 100.305(h), that:

"(h) Each housing facility or community may determine the age restriction, if any, for units that are not occupied by at least one person 55 years of age or older, so long as the housing facility or community complies with the provisions of §100.306."

Therefore, it is up to each community to determine, in its governing documents and rules, how it wishes to administer the 20 percent of the units that are not required to be age-restricted.

E. Another change in the new rules is a one-year "transitional" provision which would allow communities that currently do not have 80 percent occupancy by persons 55 and older to nevertheless seek to qualify for the exemption. For one year from May 3, 1999, if communities meet the other requirements (e.g. policies and procedures, and verification of occupancy), and if the community reserves all unoccupied units for occupancy by persons 55 and older until the 80 percent requirement has been met, the HFOP exception can be claimed. Now that the requirements for the exemption have been liberalized and clarified, communities may wish to reconsider this option even if they do not currently have 80 percent occupancy.

F. Finally, the proposed rules also address the protection that the 1995 amendments have given to persons who rely upon a good faith belief that a community qualifies as housing for older persons. The statute and the rules provide that a person shall not be held personally liable for damages for discrimination if such person "acted with a good faith belief that the housing facility or community qualified", based upon a written statement from an authorized representative of the community that it qualifies as 55-or-older housing. Each community asserting the HFOP exemption should therefore have the Board of Directors adopt a resolution at one of its meetings, and a notarized certification should be provided to all persons who are assisting in the enforcement of the restrictions, as well as to local realtors and other persons who might need to rely on the exemption in refusing to show property to families or other persons who do not comply with the age restrictions.

Please contact your association attorney if you have any questions regarding your individual community.