"When I'm 64": Fair Housing Law And The Baby Boom Generation

The 1967 Beatles song “When I'm 64” was written by Paul McCartney—some say when he was only 16 years old. No doubt 64 seemed old to the teenaged songwriter, but millions of “baby boomers—those born between 1946 and 1964—probably would disagree, as the first of that generation turns 64 this year.

Because of the sheer numbers involved, government officials have been anticipating the aging of the baby boom generation for some time. The most recent census data shows that by 2030—when all baby boomers will be 65 or older—nearly one in five U.S. residents is expected to be 65 or older. That age group is projected to increase to 88.5 million in 2050—more than doubling the number in 2008 (38.7 million).

For its part, the Social Security Administration (SSA) is beefing up its Web-based services to face what has been called a “silver tsunami” of retirement and disability claims from baby boomers. The SSA says that the first of approximately 80 million baby boomers has already applied for retirement benefits, and that baby boomers also are applying for disability benefits in greater numbers than previous generations.

Likewise, fair housing officials have urged the housing industry to prepare for aging baby boomers by building accessible housing. It makes good business sense, according to the U.S. Department of Justice (DOJ), which reports that more than 50 million Americans—or 18 percent of the American population—live with some type of disability, and that together they control $175 billion in discretionary spending. As the population ages and as the baby boomer generation retires, DOJ says that the need for accessible housing will only grow.

Meanwhile, some consider aging baby boomers—generally believed to be in better health and more affluent than previous generations—to present an ideal marketing opportunity. In the housing market, recent years have seen a steep jump in the development of 55-and-older communities geared toward “active adults.” Though the current economic crisis has stalled the development of new construction of such communities, industry experts predict growing demand for rental housing in this market.

Most 55+ communities limit occupancy to adults, which is generally lawful as long as they meet strict requirements to qualify under an exemption to fair housing protections based on familial status. Many communities have found themselves in legal hot water by seeking to attract adults without bothering to meet those requirements. And in communities that otherwise qualify, a lapse in record keeping or technical requirements will jeopardize the community's exemption, opening a floodgate of discrimination claims from families with children.

In this month's issue, we'll review the fair housing issues likely to arise as communities gear up for the aging baby boom generation. Then we'll suggest five rules to help you avoid fair housing troubles. Finally, you can take the COACH's Quiz to see how much you have learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability. Notably, age is not a protected characteristic under federal law, but that doesn't mean that you can't get into fair housing trouble when it comes to baby boomers.

Family status. The FHA's ban on discrimination based on familial status prohibits communities from excluding or otherwise discriminating against families with children unless they qualify under the exemption as “housing for older persons.” The exemption applies only to the FHA's familial status provisions; communities still must abide by the law's protections based on race, color, national origin, religion, sex, and disability.

The exemption applies to several types of communities, but most privately funded communities qualify under the 55-and-older provisions: housing in which there is at least one person who is 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates intent to house persons who are 55 or older.

80/20 rule. This rule requires that at least one person 55 or older lives in 80 percent of occupied units, but it does not restrict the ages of the other occupants in those units. Although the law permits communities to allow families with children to live in the remaining 20 percent, fair housing experts note that most 55+ communities exclude children from living there.

Intent rule. The law requires the community to adhere to policies that demonstrate its intent to operate as housing for persons 55 years of age or older. Examples include written rules, regulations, and lease provisions, as well as advertising used to attract prospective residents to the community, according to HUD.

Verification rule. Communities must be able to produce verification of compliance with the 80 percent rule through reliable surveys and affidavits, says Atlanta-based fair housing attorney Robin Hein. 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—and to verify the age of the residents in units occupied by persons 55 and older through reliable documentation. And 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.

The rules to qualify under the exemption are rigid—either you meet them or you don't—according to Hein, but it works on a sort of honor system—the FHA does not require 55+ communities to submit paperwork or otherwise apply for the exemption. That has led to problems, according to legal experts, when communities skirt legal requirements by holding themselves out as senior housing communities without fulfilling legal requirements.

Example: In March 2010, a 42-unit community in Florida agreed to pay more than $415,000 to resolve allegations of housing discrimination against families with children and African Americans, according to DOJ. The case stemmed from allegations that a prospect, an African-American woman, visited the community with her grandson and was told that there were no vacancies. Though she said that she wasn't allowed to submit an application, she claimed that the form contained the notation “ADULTS ONLY” in the space designated for the number of children. Allegedly, her friend called later the same day and was told that units were available. The case settled after the government won a partial victory late last year, when a federal court found that the community violated the FHA by engaging in a pattern or practice of discrimination against families with children [United States v. Fountain View Apartments, Inc., Florida, December 2009].

Disability. As time goes on, all communities must prepare to deal with increasing numbers of aging baby boomers with some form of disability. Through advancements in medicine, millions of baby boomers are expected to live longer than their parents' generation, but the tradeoff is that many have—or are expected to have—a disability at some point in their lives. And many baby boomers will have disabilities different from those of their parents, such as AIDS/HIV, multiple chemical sensitivity, and other conditions as they are recognized by medical experts in coming years.

The FHA bans discrimination based on disability, which generally means a physical or mental impairment that substantially limits one or more major life activities. The law applies to a broad range of physical and mental impairments that are serious enough to substantially affect activities that are of central importance to daily life.

The FHA prohibits communities from excluding individuals with disabilities or discriminating against them in the terms, conditions, and privileges of the tenancy. Among the most common forms of discrimination is failure to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. In requiring that the request be reasonable, the law permits communities to deny a requested accommodation if it would impose an undue financial or administrative burden on the community or result in a fundamental alteration of its operations.

In addition, the FHA 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.

Owners may approve a request for a reasonable modification on the condition that the resident will restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. But the law does not require residents to restore reasonable modifications made outside their units.

5 RULES FOR AVOIDING DISCRIMINATION CLAIMS INVOLVING BABY BOOMERS

Rule #1: Check Compliance to Avoid Familial Status Complaints

Unless your community satisfies the strict requirements to qualify as “housing for older persons” under the FHA, you can't go out of your way to attract baby boomers without running the risk of a discrimination complaint based on familial status.

To qualify as a 55+ community, you must show clearly, through your policies and procedures, that your community is intended to house older people. Coordinate all written materials—including written policies and procedures, applications, leases, forms, bylaws, community rules, brochures, and advertising—to reflect your intent to provide housing for older persons. This can be done by simply stating: “We provide housing for people 55 and older.” Consistently stating that your community is a senior housing community, and enforcing rules and policies developed for that purpose, will help fulfill this requirement.

To qualify for the exemption, the FHA also requires communities to verify “by reliable surveys and affidavits” that at least 80 percent of the apartments have at least one occupant who is age 55 or over. That means you'll need records of the residents living in your units, including names and ages, along with some form of proof, such as copies of a government ID or a driver's license. What is important is not whose name is on the lease, but who is actually living in the unit, because you will have to prove that at least 80 percent of your units are occupied by someone 55 or older.

To maintain the exemption, you must keep updated information because HUD requires verification every two years. If you ever face a discrimination complaint filed by a family with children, Hein says that you'll have to prove your compliance with all of the law's requirements on the date of the alleged discriminatory act. Unless the community has the documents needed to prove it qualified for the senior housing exemption, Hein warns, it will be liable for discrimination based on familial status.

Finally, it's important to remember that the senior housing exemption applies only to the FHA's familial status provisions, so that qualifying communities are excused from the FHA requirement to rent to families with children under the age of 18. Senior housing communities are not exempt from the rest of the federal fair housing law, which bans discrimination based on race, color, national origin, religion, sex, and disability—or from state and local fair housing laws.

COACH'S TIP: Check the law in your state and local area. HUD warns that state and local governments with substantially equivalent fair housing laws may have no exemption from familial status discrimination for housing for older persons, or may have more stringent requirements to meet the exemption. For example, Hein explains that before it was amended in 1995, the FHA required housing for older persons to have significant services and facilities specifically designed for its elderly residents. Although the federal law was changed to eliminate that requirement, some states did not adopt the amendment. In those states, including Georgia, Hein warns that communities are still required to provide significant services and facilities specifically designed for its elderly residents to qualify under the exemption as housing for older persons.

Rule #2: Take Care in Advertising and Marketing Geared Toward Baby Boomers

In general, advertising and marketing campaigns geared toward baby boomers would be unlawful unless the community qualifies as housing for older persons. Among the prohibited practices listed in the FHA is making statements that express a preference against members of protected classes, including families with children. Statements include not only advertising or marketing materials, but also comments by leasing agents or other employees.

Without benefit of the exemption from the FHA's familial status requirements, your community would face liability under the FHA for any statements that indicate your community prefers adults or excludes or restricts families with children from living there. For example, phrases that suggest a preference for adults, as well as couples or singles or families without children—or use colloquialisms to imply the same thing such as “empty nesters—are unlawful, according to Pennsylvania Human Relations Commission's advertising guidelines.

By the same token, even communities that qualify for the exemption must be careful in the choice of words and images used in advertising and marketing campaigns. HUD says that the kind of advertising used to attract prospective residents to the community and the manner in which your community is described to potential residents are among the relevant factors to determine whether a community has demonstrated an intent to provide housing for persons 55 and older.

Though common in advertising appealing to baby boomers, phrases such as “adult living” and “adult community” are inconsistent with an intent to operate housing for older persons, according to HUD. The reasoning is that anyone 18 and older is an adult, says Hein, but that in order to qualify under the exemption, the advertising needs to specifically state that it is for adults over age 55.

Although HUD says that use of “adult” does not destroy the intent requirement, that doesn't mean that it's necessarily a good idea. HUD says that as long as the community clearly shows in other ways that it intends to operate as housing for older persons, meets the 80 percent requirement, and has in place age verification procedures, the intent requirement can be met even if the term “adult” is occasionally used to describe it. Consequently, many fair housing experts warn against using the term “adult” in favor of terms such as “senior housing,” “retirement community,” or “a 55 and older community” when advertising and marketing housing intended for older persons.

COACH'S TIP: It's common to see phrases like “active adults,” and “independent living community” in advertisements appealing to draw baby boomers to 55+ communities. Both may present problems from a fair housing perspective because they could imply that your community has a preference against individuals with disabilities. Likewise, you could trigger a disability discrimination complaint if the only photos used in your advertising and marketing materials are of youthful, fit baby boomers using the tennis courts, pools, or other recreational facilities at your community.

Rule #3: Ensure Compliance with Disability Protections

Community policies and procedures to avoid discrimination claims by individuals with disabilities will become all the more important as the baby boom generation ages. For the last several years, HUD statistics show that disability discrimination has been the most common reason for a fair housing complaint. As the population grows older and the baby boom generation retires, the number of Americans who live with some type of disability will almost certainly increase, spiking the demand for accessible housing and other disability-related requirements.

Review your application and admissions policies to ensure that they don't make a distinction based on disability, says Hein. It is unlawful to seek out or show favoritism toward fit baby boomers, while discouraging or steering those who may have a disability away from your community.

And Hein warns that communities may not ask prospects whether they can live independently or require residents to live independently as a condition of the lease. Courts have found that a policy requiring applicants to demonstrate an ability to live independently violates fair housing laws protecting individuals with disabilities [Cason v. Rochester Housing Authority, New York, August 1990].

In fact, the FHA generally forbids communities from asking prospects questions about whether they or members of their household have a disability or the nature and severity of a disability. The law recognizes a limited exception that allows certain disability-related questions if needed to handle accommodation or modification requests, but the rules are complex.

Train staff to be attuned to potential disability-related requests from prospects—for example, if a prospect mentions a medical condition when asking about your fitness facilities—but not to ask disability-related questions at that point. When something like that comes up, Hein says that it should trigger recognition that you may need to explore the issue further in accordance with your disability-related policies and procedures.

Rule #4: Check Whether Your State Bans Age Discrimination

Age is not a protected characteristic under the FHA, but many communities are subject to state and local laws that ban housing discrimination based on age. The laws vary in the language used and whether they are designed to protect younger people—for example, individuals aged 18 and older—or older people, for example, individuals who are over 40 or are “elderly.”

Efforts to reach out to baby boomers—rather than their parents—raise potential fair housing concerns under state laws banning age discrimination. Of course, communities that do not qualify for the exemption as housing for older persons may not target advertising or otherwise indicate a preference for baby boomers without triggering a potential claim for discrimination based on familial status. But it is far from clear whether 55+ communities may advertise and favor prospects from the first wave of baby boomers—who are now in their fifties and sixties—instead of their elderly parents.

Doing so could trigger a complaint under state laws banning discrimination based on age. In the absence of court rulings with respect to housing discrimination, F. Willis Caruso, Esq., co-executive director of the John Marshall Law School Fair Housing Legal Support Center and Clinic, says that courts often look for guidance in employment discrimination cases.

The federal law banning age discrimination in employment applies to individuals 40 and over. In most cases, the disputes arise when an employee over 40 is fired and replaced by a worker under 40, but some courts have ruled that the law could apply when both are over 40 based on the disparity in ages—a seven-year age difference, for example, when a 51-year-old was replaced by a 44-year-old. If the courts were to extend that reasoning to housing discrimination, it's possible that marketing and admissions practices favoring baby boomers over elderly prospects could trigger a complaint under state laws banning discrimination based on age.

Rule #5: Review Policies on Sexual Orientation

As your community prepares for aging baby boomers, it's a good idea to review policies and procedures on discrimination based on sexual orientation and gender identity.

Though not currently protected under federal law, sexual orientation and gender identity are currently on the radar screen in Washington. Earlier this year, HUD announced plans for the first-ever nationwide study on housing discrimination in the lesbian, gay, bisexual, and transgender (LGBT) community. And Congress is currently considering a bill to add federal fair housing protections based on sexual orientation and gender identity.

Whatever happens in Washington, many communities are subject to state, county, and municipal laws that ban housing discrimination based on sexual orientation—and in some, gender orientation. As time goes on, many more may be covered as state and local lawmakers around the country weigh measures to add protections based on sexual orientation and gender identity.

Meanwhile, advocates are focusing attention on the growing LGBT elder population, with a large wave of openly LGBT baby boomers poised to seek aging-related services over the next 25 years. In announcing recent congressional briefings, Rea Carey, executive director of the National Gay and Lesbian Task Force said, “LGBT elders remain a highly vulnerable and largely invisible aging population. We know that invisibility leads to greater social isolation, which can lead to increased vulnerability in many areas. We also know that discrimination across the lifespan leaves LGBT people economically and socially vulnerable as they age. There are many challenges, but we also have concrete recommendations on how aging advocates, policy makers, and social service agencies can meet them.”

If subject to state laws banning discrimination based on sexual orientation and gender identity, you should make sure your community has a written policy banning such discrimination as well as any other characteristic protected under federal, state, and local law. Caruso says that he has seen several cases involving harassment against LGBT residents by neighbors, so your policies also should include procedures to investigate and resolve complaints of harassment and retaliation against LGBT prospects and residents.

Fair Housing Act: 42 USC §3601 et seq.

COACH Sources

F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 S. Plymouth Ct., Ste. 800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood and Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com