How to Comply with Fair Housing Law When Dealing with Older Applicants and Residents

This month’s lesson reviews fair housing requirements with respect to older applicants and residents. Aging isn’t a protected characteristic under federal fair housing law, but there are many ways in which communities could face fair housing problems when dealing with older applicants and residents.

            For starters, we’re being purposely vague in referring to “older” people, but as a practical matter, we’re talking about both baby boomers and their parents. The famous quote, “To me, old age is always 15 years older than I am,” is apt when talking about baby boomers, many of whom qualify for senior housing, but may not consider themselves senior citizens quite yet. And, though we’ll cover the rules with respect to senior housing, this issue addresses fair housing concerns in all communities.

            In recent years, the housing crisis has led to a surge in the rental housing market, according to a June 2012 report by Harvard researchers on the state of the nation’s housing. Demand has spiked in the rental market, where the number of renters has jumped to the largest decade-long increase in the postwar era, the report noted. Most are young minority and lower-income households who traditionally are more likely to rent, but the foreclosure crisis and the aging of the population have combined to spur an increase in rentals to the middle-aged and other groups.

            The uptick in demand for rental housing by aging baby boomers comes as welcome news for the multifamily housing industry, but communities seeking to attract older prospects must ensure compliance with fair housing protections for families with children. The law bans discrimination based on familial status unless the community meets strict requirements to qualify as “housing for older persons.” Otherwise, communities will face liability under fair housing law for excluding or discouraging families with minor children from living there.

            Regardless of whether they qualify as senior housing, all communities must satisfy other fair housing requirements. Of particular concern is disability discrimination, which has outpaced all other grounds for the filing of formal fair housing claims for several years now. As of 2011, the largest share of housing discrimination cases, about 44 percent, involved discrimination against people with disabilities, according to an April 2012 report from the National Fair Housing Alliance. Accessibility and disputes over parking privileges, assistance animals, live-in aides, and transfers are among the top concerns.

            In this month’s lesson, we’ll review senior housing requirements and offer seven rules to avoid fair housing trouble when dealing with older applicants and residents. Then you can take the COACH’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, disability, or familial status. In addition, many state and local laws ban housing discrimination based on age, source of income, sexual orientation and gender identity, and other characteristics.

            The ban on discrimination based on familial status was added to the FHA in 1988 to address problems encountered by families with minor children who found themselves shut out of rental housing. The law generally covers anyone with legal custody or written permission to have a child under 18 living in the household, pregnant women, and anyone in the process of obtaining custody of one or more children under 18. That means minor children living with their parents, grandparents, noncustodial parents, foster parents, and anyone else who has written permission to care for such children. It also means anyone in the process of seeking custody of a child, including noncustodial parents, foster parents, or adoptive parents.

            At the same time, lawmakers recognized the need to preserve housing specifically designed to meet the needs of senior citizens. As fine-tuned by Congress under the Housing for Older Persons Act (HOPA), the FHA carves out an exception to allow qualified senior housing communities to legally exclude children. The exception applies only to the familial status provisions—senior housing communities remain subject to all other provisions of federal, state, and local fair housing laws.

            Three types of communities are eligible to qualify as housing for older persons:

            Publicly funded senior housing communities: Housing 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;

            62-and-older communities: Communities intended for, and occupied solely by, persons who are 62 or older; and

            55-and-older communities: Communities that house at least one person who is 55 or older in at least 80 percent of the occupied units, and that adhere to a policy that demonstrates intent to house persons who are 55 or older.

            It’s the third type of senior housing community that is the most likely to see a discrimination claim based on familial status. That’s because there are complex rules to qualify as a 55-and-older community—and it’s up to the community to prove that it has met all those requirements to avoid liability for excluding or otherwise discriminating against families with children. There are three key requirements:

            1. 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 persons 55 years of age or older. According to HUD, examples include:

• The community’s written rules, regulations, lease provisions, or other restrictions;
• The actual practices of the community used to enforce the rules;
• The kind of advertising used to attract prospective residents to the community as well as the manner in which the community is described to prospective residents; and
• The community’s age-verification procedures and its ability to produce, in response to a familial status complaint, verification of required occupancy.

            2. 80 percent rule. The community must ensure that at least one person 55 or older lives in 80 percent of its occupied units. The law doesn’t restrict the ages of the other occupants in those units. Nor are there age restrictions in the other 20 percent, so communities may accept families with minor children, although they aren’t required to do so and must avoid marketing to persons other than “older persons” to prevent conflict with the “intent” rule. (Note, however, that the 80 percent rule doesn't apply to 55+ communities in California, except in very limited circumstances. Since 2001, every unit in a 55+ community in California must be occupied by at least one person 55 or over. Mobile home parks are an exception because they follow federal rules, and some older properties were grandfathered in when the state law went into effect in 2001.)

            3. Verification of occupancy.The community must verify and document compliance with the 80 percent rule through reliable surveys and affidavits. HUD regulations require communities to develop procedures to routinely determine the occupancy of each unit, including the identification of whether at least one occupant is 55 or older. In addition, communities must verify the age of the occupants in units occupied by persons 55 and older through reliable documentation. Every two years, communities must update, through surveys or other means, the initial information to verify that the unit is occupied by at least one resident age 55 or older.

            It’s essential for 55+ communities to satisfy all these requirements to qualify as housing for “older persons” under federal fair housing law. Otherwise, they risk losing the exemption to the familial status provisions.

            Example: In July 2012, the city of Santa Rosa, Calif., and a homeowners’ association agreed to settle a lawsuit filed by the Justice Department, charging them with unlawfully attempting to restrict residency at a housing development to seniors aged 55 and older. According to the complaint, neither the city nor the homeowners association took the steps, such as routine age verification, necessary to qualify for the exemption to the FHA’s familial status provisions.

            Under the settlement, the city agreed to refrain from taking any enforcement action against the housing development to force it to exclude families with children. In addition, the city agreed to adopt rules to ensure compliance with federal fair housing rules for any future senior housing developments.

            The settlement prohibits the homeowners association from excluding families with children from the development unless it affirmatively complies with HOPA requirements to qualify as an age-restricted community for persons 55 years of age or older. The homeowners association also agreed to pay $44,000 in damages to the aggrieved parties as a set-off to amounts claimed to be owed by those parties. In addition, the homeowners association and the city must each pay a $5,000 civil penalty.

            “It is critical that families with children have opportunities to find housing,” Thomas E. Perez, Assistant Attorney General for the Justice Department’s Civil Rights Division, said in a statement. “We are pleased to achieve a resolution in this case that balances the housing rights of families against the ability of a municipality and community to maintain senior housing” [U.S. v. Santa Rosa, July 2012].

7 RULES FOR COMPLYING WITH FAIR HOUSING LAW

WHEN DEALING WITH OLDER APPLICANTS AND RESIDENTS

 

Rule #1: Don’t Exclude Children Unless Community Qualifies as Senior Housing

Fair housing law bans discrimination based on familial status unless the community qualifies under the exemption as housing for older persons. Only qualified communities may exclude minor children, impose age limits, or market themselves to attract older prospects. Otherwise, it’s unlawful to exclude or otherwise discriminate against applicants or residents with minor children.

            Example: In July 2012, HUD charged a Minnesota condo association and its management company with violating the FHA by discriminating against families with children under the age of 18.

            According to HUD’s charge, the condo association maintained a policy prohibiting families with children under 18 from living in the building. Allegedly, the association’s residency policy, which stated that “no apartment may be sold, leased or rented to any person who has a child under the age of 18,” prevented a condo owner from renting the unit to several families with children, including a couple on whose behalf the HUD charge was issued.

            The HUD charge will be heard by an administrative law judge unless one of the parties elects to have the case heard in federal district court.

            “Condo associations that don’t meet federal requirements as housing for older persons don’t have the right to turn away families with children,” John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to take action against homeowners associations that violate the Fair Housing Act by imposing restrictive residency policies” [Secretary, HUD v. Greenbrier Village Condo Three Association, Inc., July 2012].

            Fair housing attorney Kathelene Williams warns that many communities may find themselves in fair housing trouble by marketing themselves as “Active Adult” or “Empty Nester” communities in efforts to appeal to the nation’s growing population of senior citizens, many of whom want to live in child-free environments. Adult-only housing has been illegal since 1988, when federal fair housing law was amended to add familial status. Although the amendment also added an exception for housing for older persons, she notes that many communities thatwant to exclude children seem unaware of—or perhaps ignore—the fact that they first must qualify for the exemption before they can legally restrict or limit the number of families with children under the age of 18 on their property. Even in qualified senior housing, she advises against using the terms “adult” or “active adult” in marketing efforts—though allowed by HUD, doing so may raise red flags among some advocacy groups who argue that it’s inconsistent with an intent to operate as housing for older persons.

COACH’s Tip: Williams also points out that if a property receives a federal subsidy, such as Section 8, it is prohibited by HUD from discriminating against families with children even it meets the housing for older persons requirements. This is HUD policy, which often isn’t understood by HUD-subsidized elderly property owners and managers, she says.

Rule #2: Strictly Comply with HOPA Requirements if Applicable

If your community operates as housing for persons 55 years or older, make sure you follow all the technical requirements necessary to maintain your exemption as housing for older persons. If challenged in court, it’s up to you to prove that your community complied with all the steps required.

            In most cases, you’ll meet the first two by imposing age restrictions and demonstrating intent to operate the community for persons 55 and older through your policies, procedures, and marketing efforts. Without the shield of the HOPA exemption, those actions would ordinarily provide clear evidence of discrimination based on familial status. That’s what makes strict compliance with the third requirement—the age verification rules—so important. Ongoing litigation in a case out of Washington illustrates what can happen if a community operates as senior housing but fails to follow all the rules to qualify under the 55+ exemption.

            The lawsuit dates back to 2009, when a retirement community of single-family homes was accused by several owners of violating the familial status provisions by unlawfully limiting their ability to sell their homes. Although the community had for decades restricted ownership to persons 55 years and older, its process for determining the age of its occupants didn’t satisfy HOPA’s technical requirements.

            HUD regulations established a transition period for existing communities to comply with HOPA requirements, but it expired in May 2000. Since the community didn’t satisfy HOPA requirements for verifying the age of its occupants through reliable surveys and affidavits until at least 2007, when it conducted its first survey, a court ruled that the community could be liable under the FHA for familial status discrimination dating back to 2000.

            Nevertheless, a higher court ruled that the community has continuously met the 80 percent rule and intended to operate as senior housing, so it would be allowed to claim the exemption by coming into compliance with the verification requirement. As recently as July 2012, litigation is ongoing over whether the community’s 2007 survey satisfied HOPA requirements [Balvage v. Ryderwood Improvement and Service Association, July 2012].

TIME OUT!

 Can local governments require communities to remain senior housing?

Yes, according to a federal appeals court whose rulings are binding in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

            The case involved four mobile home parks in Yucaipa, Calif., which have operated as senior housing for many years. In 2009, the city changed its zoning laws to impose a senior mobile home park district to prohibit any of the 22 mobile home parks from converting to all-age housing. The owners sued the city for forcing them to discriminate based on familial status. At issue was one of the key requirements to operate as senior housing—the mobile home parks argued that they didn’t have the requisite intent—just the opposite, in fact, because they didn’t want to remain as senior housing. The city argued that its intent to preserve the existing mobile home parks as affordable housing for seniors satisfied the law’s requirements.

            The court agreed, ruling that municipally zoned senior housing was consistent with congressional intent in passing HOPA to preserve housing for older persons. Since the mobile homes already operated as senior housing, the zoning policy didn’t undermine the FHA’s protection of families with children [Putnam Family Partnership v. City of Yucaipa, February 2012].

Rule #3: Avoid Violations of Other Fair Housing Requirements

Regardless of whether your community qualifies as housing for older persons, you must comply with the FHA’s ban on discrimination based on race, color, national origin, sex, religion, and disability. That’s because the FHA exempts qualifying senior housing communities only from the familial status provisions to allow them to exclude or restrict children from living there.

            Otherwise, senior housing communities are like all other housing providers, which are bound by the remaining provisions of the FHA and applicable state and local fair housing laws. To prevent discrimination claims, it’s important to apply community policies and procedures consistently to all applicants and residents, regardless of race, color, national origin, religion, sex, or disability. In advertising, for example, it’s important to remember that the requirement to show diversity when using human models applies to senior housing advertising as well. Using only white people in advertising for senior housing could lead to a charge of discrimination.

            The same goes for state and local laws. Illinois and a number of other states, for example, ban discrimination based on age. HUD points out that neither the FHA nor HOPA covers age discrimination, so neither of these federal laws supersede or otherwise affect state or local laws that prohibit age discrimination. HUD says that housing communities should always check all relevant state, local, and federal laws, and any requirements imposed as a term of governmental financial assistance, before implementing policies and procedures that limit the eligibility of their residents.

COACH’s Tip: Take precautions to avoid claims of discrimination based on sexual orientation or gender identity. Even though federal law doesn’t specifically cover sexual orientation or gender identity, it’s a protected characteristic in at least 20 states and hundreds of municipalities across the nation. And it’s clearly on the radar in Washington, given HUD’s recent regulations banning discrimination based on sexual orientation, gender identity, or marital status in federally assisted and insured housing. And late last year, HUD held the first-ever summit targeting discrimination against lesbian, gay, bisexual, and transgender (LGBT) seniors. The summit was intended to spotlight current barriers LGBT seniors face in securing housing, analyze what’s causing this issue, and plan for solutions.

Rule #4: Guard Against Disability Discrimination During Application Process

Dealing with older applicants and residents makes it especially important to ensure that the community doesn’t run afoul of the FHA’s disability-related provisions.

            Under the FHA, “disability” means anyone who has, who has had, or seems to have, an impairment, either physical or mental, that substantially limits a major life activity. Examples of impairments include hearing, mobility, and visual impairments; chronic mental illness; and chronic alcoholism, according to HUD. Major life activities include walking, talking, hearing, seeing, breathing, learning, performing manual tasks, and caring for oneself.

            The FHA prohibits communities from excluding individuals with disabilities or discriminating against them in the terms, conditions, and privileges of the tenancy. Moreover, the FHA specifically bans communities from asking whether the applicant (or someone in his household or associated with him) has a disability—or the nature or severity of a disability.

            These rules apply to all communities, but it can be a particular problem in senior housing communities with respect to inquiries or requirements regarding an applicant’s ability to “live independently.” As fair housing expert Nadeen Green recently explained at the National Apartment Association’s 2012 Educational Conference, a senior doesn’t have to be able to live independently to be able to rent. An independent living requirement violates fair housing laws protecting individuals with disabilities, even if it’s motivated by concerns about liability for the applicant’s safety. Rather, she says, a senior need only meet the criteria related to four questions in order to rent:

• Can you pay the rent?
• Can you get along with your neighbors?
• Can you fulfill housekeeping obligations?
• Can you obey the lease and the law?

            But, Green emphasizes, ask these questions only if you ask them of all prospects—not just those with apparent disabilities.

Rule #5: Remember the Rules on Reasonable Accommodation Requests

Problems involving housing disputes often arise under the FHA’s requirements concerning requests for reasonable accommodations for persons with disabilities. Reasonable accommodations are changes to rules, policies, and services to allow a person with a disability an equal opportunity to use and enjoy his unit and common areas. Common examples include requests involving parking, assistance animals, live-in aides, motorized scooters and other assistive devices, and unit transfers. 

            The request must be made by, or on behalf of, an individual with a disability. Housing providers aren’t required to—and indeed can get into trouble for—making the first move. On the other hand, there’s no special language required for making a request—for example, people don’t have to use the phrase “reasonable accommodation.” As far as HUD is concerned, a housing provider has notice of a reasonable accommodation request when someone asks for a change in policies, procedures, rules, or services because of a disability. In fact, notice might even be deemed as given if someone mentions a struggle or problem they’re having, such as commenting on how they struggle to get up and over the curb in the parking lot, Green says.

            A key requirement is that the reasonable accommodation must be necessary—that is, there is an identifiable connection between the requested accommodation and the individual’s disability. Sometimes, that’s hard to determine, because either the nature of the disability or the need for the requested accommodation isn’t obvious. 

            Even so, there are limits: A community isn’t required to grant an accommodation request if it isn’t reasonable because it either imposes an undue financial and administrative burden on the community or it would fundamentally alter the nature of the provider’s operations. When assessing financial burdens, keep in mind that communities are expected to incur some costs associated with reasonable accommodations—they may not pass along those costs by requiring the payment of extra fees, deposits, or higher rent as a condition of granting the request.

            Even if a requested accommodation is unreasonable, HUD says housing providers should engage in an “interactive process” to discuss alternatives that wouldn’t unduly burden the community but meet the person’s disability-related needs.

Rule #6: Be Prepared to Handle Accommodation Requests

Knowing the rules is one thing, but handling accommodation requests can be tricky, so it’s a good idea to adopt policies and train your staff on how to recognize and respond to requests for reasonable accommodations. Each request must be considered on an individual basis, but there are certain types of requests that frequently arise when dealing with older applicants and residents.

            A vexing problem is parking, particularly in senior housing and other communities with large populations of elderly or disabled residents. Take, for example, HUD’s basic example of a resident with an obvious mobility disorder who lives in a community with unassigned parking: If he requests an assigned, accessible space close to the entrance, HUD says the housing provider must grant his request as a reasonable accommodation. But a recent case from Wisconsin illustrates how difficult it can be to apply to a small community with limited parking.

            The case has a long procedural history, but it started when a 52-year-old man with a mobility impairment moved into an 18-unit HUD-assisted community for residents who were either 62 and older or disabled. Most of the residents had difficulty walking; some used wheelchairs and other mobility devices. Most also owned vehicles, but there were only 12 spaces in the parking lot, two reserved for handicapped parking, but none permanently assigned. Nevertheless, there was an established practice of leaving the first space, which had a curb cut and was closest to the door, open for use by emergency vehicles or those transporting disabled residents.

            When he moved in, the man was apparently unaware of the community’s policies or established practice involving parking. Discussions with management apparently led to a misunderstanding—he thought he was permanently assigned the spot farthest from the door—which in turn led to a HUD complaint, and two federal lawsuits.

            The first case, filed by the Justice Department, was settled. The community, which didn’t admit liability, was required to make changes to its parking policies and the configuration of its lot. The community dedicated three handicapped parking spaces, but accommodating the larger spaces reduced the number of parking spaces to 10.

            In June 2012, a court put the case to rest, dismissing the resident’s separate claim for damages. The court ruled that there was no evidence that he ever requested an assigned space closer to the spot he had been using. At best, he asked only for leeway to park closer to the door, not for an assigned spot. Although he may have thought the manager should have read more into his words, the court said that a request for an accommodation must be specific enough to let the other party know what he wants.

            The court declined to address the community’s argument that forcing it to give him exclusive use of the space closest to the door would have been unreasonable. The court said the situation was different from the example in HUD’s regulations of a 300-unit community with 450 parking spaces. Given the nature of the housing and the limited number of spaces, the court noted that the resident never explained how providing him with an assigned space near the door wouldn’t have discriminated against other tenants, given the ratio of disabled residents to close parking spaces. But, the court said, whether the FHA would require giving him an exclusive space was “a question for another day” [U.S. v. WHPC-DWR, LLC., June 2012].

Rule #7: Address Accessibility and Modification Requests

Be prepared to address disability-related modification requests and other accessibility concerns. Fair housing law requires communities to permit applicants or residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises.

            Communities must consider requests for reasonable modification not only to the interior of a unit, but also to lobbies, main entrances, and other public and common use areas of buildings. Common examples cited by HUD include installing a ramp into a building, lowering the entry threshold of a unit, or installing grab bars in a bathroom. The age of your building would affect the decision as to who’s financially responsible for these modifications, Green says.

            Owners may approve a request for a reasonable modification on the condition that the resident will restore the interior of the premises to as usable a condition as existed before the modification, reasonable wear and tear excepted. But the law most often doesn’t require residents to restore reasonable modifications outside their units.

            In conventional housing, reasonable modifications are usually made at the resident’s expense—but HUD points out that federally assisted housing providers may be required to pay for the modification if it doesn’t amount to an undue financial and administrative burden.

COACH’S Tip: The FHA imposes design and construction standards on certain communities built for first occupancy after March 13, 1991. For more information, see the March 2008 Fair Housing Coach, “Ensuring Compliance with FHA’s Design and Construction Requirements,” available in our online archive at www.FairHousingCoach.com. In certain cases, the community may be required to provide and pay for the requested and needed modifications.

• Fair Housing Act: 42 USC § 3601 et seq.
• HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf
• HUD guidance: Reasonable Modifications Under the Fair Housing Act, www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf
• Questions and Answers Concerning the Final Rule Implementing the Housing for Older Persons Act of 1995 (HOPA), http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_7769.pdf

COACH Sources

Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

Kathelene Williams, Esq.: The Law Firm of Williams & Edelstein, P.C., 7742 Spalding Drive, Ste. 478, Norcross, GA 30092; (770) 840-8483; kathi@fairhouse.net.