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Condo | HOA Lawyers

Steps to Becoming a 55 and Older Community By David W. Kaman, Esq

Federal and state fair housing laws prohibit community associations from discriminating against occupants on the basis of “familial status.” Familial status is defined as one or more persons 18 years of age or younger who live with a parent or legal guardian. The community association’s rules and restrictions therefore cannot single out children for different treatment than adults.

An exception exists if a housing facility qualifies as housing for older persons under the Housing for Older persons Act of 1995 (“HOPA”). When a community association meets the requirements of HOPA, the community is generally exempt from Fair Housing Act restrictions against discrimination based on familial status but is still subject to provisions that prohibit discrimination due to race, color, religion, national origin, sex, or disability.

To qualify under HOPA, two requirements must be met. First, all occupants of homes within the community association must be 62 years old or 80% of homes must be occupied by at least one occupant who is 55 or older. To determine whether the association’s demographic meets these standards, community associations should send out a survey to the ownership verifying the age of all occupants.

Second, if the association meets the occupancy criteria, the age restriction must be specified in the association’s Declaration, which is recorded with the county.  For most community associations, this will require pursuing an amendment that is approved by the ownership. When these two steps are fulfilled, the community association will qualify as housing for older persons.

The community association must demonstrate continued compliance with mandated age requirements by conducting a reliable survey, census, affidavit, or other documentation every two years. In the event there is a period the community association does not comply with all HOPA requirements, the community association would no longer be exempt from Fair Housing laws pertaining to familial status.

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