Senior Housing – What the Law Requires to Exclude Families with Children from Multifamily Housing

When the Fair Housing Amendments Act of 1988 passed, amending the Fair Housing Act, it added protections for families with children as well as for the disabled. The familial status provisions made it unlawful to discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household. The children may live with (1) a parent; (2) an individual with legal custody; or (3) an individual who has the written permission of the parent or custodian.

The protections also apply to pregnant women and anyone in the process of securing legal custody of children under 18.

Congress did permit one exception to the protection for families with children – senior housing or housing for older persons.

There are three types of communities that are eligible for the senior housing exemption:

1. Publicly funded senior housing communities: These are communities where HUD has determined that the dwelling is specifically designed for and occupied by elderly persons under a federal, state, or local government program;
2. 62 and older communities: Every resident in the community must be 62 or older; or
3. 55 and over communities: At least one person age 55 or older must live in at least 80% of the occupied units and it must be clear that the intent of the property is to serve only people age 55 and older.

Basic Rules for Qualifying as Senior Housing

1. Comply with the technical requirements for the senior housing exemption – complying with the law governing the 62+ exemption is easy; everyone living in the community must be 62 or older. For example,  a 62 year old man with a 59 year old wife would not be eligible. The 55+ rule is more difficult to understand and comply with. To qualify, a property must meet each of the following requirements: (1)at least 80% of the occupied units must have at least one occupant who is 55 or older; (2) the community must publish and adhere to policies and procedures that demonstrate the intent to operate as “55 or older” housing; and (3) the community must comply with HUD’s regulatory requirements for age verification of residents. Each of these three requirements must be fully understood in order to ensure compliance with the law.
   1. The 80% Rule: at least one person age 55+ must live in 80% of the occupied units. The law does not restrict the age of the other occupants in those units. The “occupied” rule applies to temporarily vacant units if the primary occupant has resided in the unit in the past year and intends to return on a periodic basis. It is a good idea to always have more than 80% of units occupied by someone 55+ so that if an older person with a younger spouse dies, the surviving spouse will not have to move.
   2. Intent to operate as senior housing: a community must publish and adhere to policies and procedures that demonstrate its intent to operate as housing for older persons. For example, (1) written rules, regulations, lease provisions, etc., are clearly intended for seniors; (2) the actual practices of the community enforce the rules; (3)the advertising should be clearly intended to attract only seniors; and (4)the community must have age verification procedures and be able to prove required occupancy.
   3. Verification of occupancy: through the use of reliable surveys and affidavits, owners must be able to produce verification of compliance with the 80% rule. The age verification procedure should be part of the move-in process and then once every two years. While HUD will accept a certification signed by any household member age 18+ that at least one person in the unit is 55+, it is best to have actual verification of age in the file (e.g., birth certificate, driver’s license, passport, immigration card, etc.).
2. Market the community as senior housing – advertising and marketing are a critical element of a property’s ability to qualify as senior housing. The property must demonstrate a clear intent to provide housing for older persons. Using the wrong words to describe the property could undercut a property’s ability to demonstrate an intent to operate as “55 or older” housing. For example, properties should avoid terms such as “active adult,” “empty nester,” or “adult only.” However, the use of one of these terms, by itself, does not destroy the community’s ability to meet the intent requirement. All the elements of the project’s marketing and operation are taken into consideration. However, better terms are “senior housing,” “55 and older community,” “retirement community.”
3. Don’t discriminate based on race or other protected characteristics – e.g., a senior facility that gives preference to applicants of a certain religion would be in violation of the law.
4. Enforce rules to prevent harassment by or against residents – bullying or any other form of harassment based on protected characteristics should not be tolerated. The following case is instructive in this area:
   1. Wetzel v. Glen Street Andrews Living Community, August 2018.
      1. Facts:
         1. The resident alleged that she endured months of physical and verbal abuse by other residents at an Illinois retirement community due to her sexual orientation.
         2. Despite her complaints, the community did nothing to stop it, and in fact retaliated against her because of her complaints.
         3. The resident was able to prove that (1) she had endured unwelcome harassment based on a protected characteristic, and (2) the harassment was severe or pervasive enough to interfere with her tenancy.
      2. Ruling: A federal court has reinstated the case, ruling that employment discrimination based on sexual orientation qualifies as discrimination based on sex and the same is true for housing claims. The court also ruled that the harassment was severe and pervasive – it lasted for 15 months and involved threats, slurs, derisive comments about her family, physical violence, and spit. If the court determines that management knew of the harassment and was indifferent to it, the Fair Housing Act will have been violated.

It should be noted that this court ruling applies in Illinois, Indiana, and Wisconsin. Another federal court in Missouri found that discrimination based on sexual orientation is not sex discrimination (Walsh v. Friendship Village of South County, January 2019).

Ultimately, unless a senior housing community rents only to persons age 62 or older, great care must be taken with regard to advertising, programs, and procedures to ensure that the property clearly intends only to rent to older persons.