Monday, November 11, 2013

Is Your Senior Housing Community Legal?

The news is full of reports about the enormous rise in the senior population as baby boomers begin to reach retirement age.  The population of seniors is projected to grow at a faster rate than the total population of the United States in the coming years.  Therefore, it is not surprising that many developers are building housing that is geared towards and marketed to seniors.  However, many developers are marketing their products in a manner that violates the Federal Fair Housing Act.

The Fair Housing Act prohibits discrimination in housing and real estate-related transactions based on race, color, religion, sex, national origin, handicap and familial status.  "Familial status" generally means the presence of children under the age of 18 in the household.  Any type of marketing or comments by sales agents that suggests that children are not welcome violates the Fair Housing Act.  Thus, advertising housing as an "adult," "senior" or "55+" community violates the Fair Housing Act unless the project has clearly shown an intent to operate as senior housing under the Housing for Older Persons Act ("HOPA").

HOPA is an exception to the Fair Housing Act's prohibition against familial status discrimination.  Age restrictions must be in place for the housing project in order to demonstrate an intent to comply with HOPA.  Among other things, HOPA requires that at least 80% of the units be occupied by at least one person 55 years of age or older.  This occupancy requirement must be included in restrictions or rules for the community.  It is not enough that the restriction be included in the restrictions or rules, the community must regularly verify the age of occupants to ensure compliance.

Those communities that are being marketed as "senior" housing or "55+" housing that do not have any age restrictions for occupants violate the Fair Housing Act.  A developer/seller could also be in violation of the Fair Housing Act if the developer/seller allows a non-age-restricted community to be listed on 55+ housing websites or in senior community listings.

Developers/sellers should routinely review their marketing materials and search internet sites to determine how the project is being listed or described to protect against unintentionally violating the Fair Housing Act.  Please contact us to review your project documentation and marketing materials for compliance.

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