Title VIII of the Civil Rights Act of 1968 prohibits discrimination in the provision of housing based on race, color, religion, sex or national origin.  The Fair Housing Amendments Act of 1968 added “familial status” and “handicap”, but created an exemption for certain housing designed for older persons.  The Housing for Older Persons Act of 1995 (“HOPA”) amended the requirements for this exemption as follows: (1) at least 80% of the occupied units must be occupied by at least one person 55 years or older; (2) the community must publish and adhere to policies and procedures that demonstrate intent to comply; and (3) the community must comply with HUD rules for verification of occupancy.

These federal statutes, in most cases, mean that associations may not impose age restrictions, such as a requirement that all residents be at least 18 years of age.  However, in cases of housing intended and operated for persons 55 years of age or older, federal law does not prohibit age restrictions.

The regulations regarding housing for older persons provide that each housing facility or community may, but is not required to, adopt age restrictions as long as the housing facility or community complies with all other provisions of the federal regulations.  Federal law permits an absolute ban of children under age 18 (or any other age determined to be appropriate for the community) in housing for older persons.  However, federal law does not require any ban on children in such communities.  In fact, the law barely mentions children.

While absolute bans are legal, they may not always be prudent.  Consider the following scenarios:  A special needs child who may need to be watched by grandparents while the parents work; an abused woman with children who needs to stay with her parents until she can be independent; the death of parents resulting in children living with grandparents; and the May – December couple who are surprised by the birth of a child.  While a flat out ban may be easier to administer, it may not allow the community the flexibility it desires to address unusual situations. 

Although at least 80% of the units must be occupied by persons age 55 and older, the community is not precluded from allowing persons under some specified age such as 21 or 18 from also living in such a unit.  Some communities allow persons under the age of 21 to live in a unit if the board reasonably determines that the occupancy is necessary to provide a reasonable accommodation for the health care needs of a handicapped parent or grandparent who would be unable to reside in the unit without such persons care. 

Some communities also give their boards flexibility to make other exceptions to a minimum age requirement so long as the 80% HOPA requirements are still met. 

If your community qualifies as a community for older persons under HOPA, age restrictions and other restrictions in the governing documents should be carefully considered and drafted in a manner to preserve eligibility under HOPA, yet meet community needs in terms of age restrictions.
[PRINTER FRIENDLY VERSION]