Thursday, November 5, 2009

Is your community violating state and federal fair housing

Sometimes discrimination can be subtle by just implying that something is not wanted rather than shouting it. A sign at the front of a beautiful community in a desired location proclaiming: "A 55 and Older Community" sends a pretty clear message that families are not wanted. In other communities, it may be a little more subtle with pictures on their website of only seniors and tagwords like "mature" when describing the type of occupant who will enjoy living there.

In addition to the federal fair housing law, Florida law also prohibits discrimination based on familial status. Both the state and federal fair housing laws permit communities to exclude children as permanent occupants if they meet certain exclusions. To qualify for the "55 and older" federal exemption, communities must meet the requirements established in the Housing for Older Persons Act of 1995 (HOPA). Specifically, at least 80% of the units or homes must be occupied by at least one occupant who is age 55 or older and the community must be able to demonstrate, through written policies, lease provisions, advertising, etc. that the community is designed exclusively for older residents.

A community will only be able to exclude children if it meets this criteria and if the age restriction is applied to the entire development and not just one portion of it. In other words, a multi-condominium community could not set aside just one building for older occupants and exclude children from the entire complex.

You cannot get around this criteria by simply passing rules designed to discourage families with young children while not meeting the 80% occupancy threshold. A classic example is prohibiting children from riding bikes in the community's green areas while not similarly prohibiting adults from riding bicycles there. The Department of Housing and Urban Development (HUD) periodically sends "spotters" to test for discriminatory practices and a large percentage of those tests do produce fair housing complaints. Remember, if you have that sign out front proudly proclaiming that you are a Senior Housing Community but you haven't taken a census in the last decade to actually verify that information, you have committed de facto discrimination because potential younger purchasers drove by under the mistaken assumption that they could be kept out.

Most people living in adult communities purchased there because they wanted a certain lifestyle. If that is the case in your community, it is important that you routinely safeguard that lifestyle by ensuring that you continue to meet all necessary requirements under federal and Florida law. Lastly, considering that women today are having babies well into their forties and most 55-year old's in 2010 are 2 or 3 decades from retiring, the tagline "55 and Over" for a community without children seems a little out of touch with today's realities. The threshold would probably make more sense if we nudged it up a decade to 65 and Over.

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