If you operate a retirement community or facility, you can bypass the Fair Housing Act’s familial status discrimination provision. But only if you follow certain rules under the Housing for Older Persons Act of 1995 (HOPA)—and rules that can be confusing. It’s easy to make costly mistakes that violate fair housing laws.
If you have (or will have) designated senior housing, it’s imperative that you understand HOPA’s specific exemption to the familial status protection—as well as the qualifications and most common violations, according to real estate experts Anne Sadovsky and Jo Becker in their webinar, “Brush Up On Fair-Housing Compliance With 2 Super Trainers.”
Know the HOPA Exemption Basics
Normally, under the Fair Housing Act, discriminating against prospective residents due to their familial status (typically meaning the fact that a family includes children) is prohibited. But the HOPA exemption allows certain 55-and-older communities and facilities to exclude certain family types without violating the familial status provision.
First thing’s first: Does your housing community or facility actually qualify for the HOPA exemption? To qualify, the U.S. Department of Housing and Urban Development (HUD) mandates that you meet all of the following requirements:
- At least 80 percent of the occupied units must be occupied by at least one person 55 years of age or older per unit;
- The housing facility/community owner or management must publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older; and
- The facility/community must comply with the HUD Secretary-issued rules for verification of occupancy through reliable surveys and affidavits.
Document Your HOPA-Relevant Intentions
Many housing providers aren’t sure how to demonstrate “intent,” as referenced in the second requirement above.
Do this: HUD offers the following examples of actions that would demonstrate intent to provide housing to persons 55 years of age or older:
- Define your intent in your written rules, regulations, lease provisions, deeds, or other restrictions;
- Incorporate your intent into the actual practices you follow in enforcing your housing facility/community rules;
- Make sure your advertising to attract prospective residents reflects your intent, as well as the manner in which you describe your facility/community to prospective residents; and
- Ensure you’re using appropriate age-verification procedures (note: you must be able to produce such verification if you need to respond to a familial status complaint).
Choose Your Words Carefully
Your advertising plays a significant role in whether you quality for HOPA exemption and meet fair housing compliance standards.
Beware: To prove intent, you can’t rely on simply using terms such as “adult” or “adult community” in your advertisements, signs, or other informational materials.
In fact, some state and local enforcement agencies—as well as HUD—discourage housing providers from using these terms, because they don’t comply with the HOPA exemption requirements and could make you vulnerable to fair housing complaints, according to a blog posting by Doug Chasick, President of The Fair Housing Institute.
In addition to “adult” and “adult community,” Chasick warned that you should also avoid using terms such as “active,” “empty nester,” and “adult community” in your advertising. Instead, the safest strategy is to use the following phrases:
- Senior Living Community
- Senior Housing
- Retirement Community
- Housing for Older Persons
- 55 and Older Community
- 55 and Better Community
Don’t Throw Out Your Fair Housing Compliance
Remember: The HOPA exemption does not protect senior housing communities and facilities from housing discrimination liability based on non-age factors, Leading Age warned in a factsheet. You still must protect against discrimination based on protected classes under the Fair Housing Act, including race, color, religion, sex, disability, and national origin.
Bottom line: Make sure you have a solid understanding of the HOPA exemption and how it impacts your fair housing compliance efforts when it comes to familial status, Sadovsky and Becker stress. If you and your staff know how to comply with the HOPA exemption, you can avoid making costly fair housing compliance mistakes.
