Are Senior or “55+” Restricted Communities Legal?

I had a sign call on one of my listings yesterday. This particular home is located in Cozy Dale Retreat, and, as the subdivision name would imply, an adults-only community. One member of the household (who also must be an owner of record) has to be at least 55 years old.

In talking with this potential buyer, she told me that she had a 28 year old son who had just had a kidney transplant and that he would be living with them. When I told her that it was prohibited in this particular community, she pulled out the “familial status” card.

Point #1: Excerpt from the Fair Housing Act, Sec. 802. [42 U.S.C. 3602] Definitions

(k) “Familial status” means one or more individuals (who have not attained the age of 18 years) being domiciled with–

(1) a parent or another person having legal custody of such individual or individuals; or
(2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.

The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.

With her voice increasing an octave or two, she proceeded to tell me that it was also “age discrimination” and that it is illegal.

Point #2: Excerpt from the Fair Housing Act, Sec. 807. [42 U.S.C. 3607] Religious organization or private club exemption

(1) Nothing in this title limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling. Nor does any provision in this title regarding familial status apply with respect to housing for older persons.
(2) As used in this section “housing for older persons” means housing —

(A) provided under any State or Federal program that the Secretary determines is specifically designed and operated to assist elderly persons (as defined in the State or Federal program); or
(B) intended for, and solely occupied by, persons 62 years of age or older; or

(C) intended and operated for occupancy by persons 55 years of age or older, and–

(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;
(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and

(iii) the housing facility or community complies with rules issued by the Secretary for verification of occupancy, which shall–

(I) provide for verification by reliable surveys and affidavits; and
(II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification.

And finally, she told me that she was fighting with two other home owner associations because the age restriction was discrimination and “illegal”. It was at this point that, rather than continuing to try to educate (and debate with) her, that I told her that there was a legal procedure to create an age restrictive subdivision in Utah and, if the community wasn’t created properly, then their age discrimination could potentially be illegal, but that this was not the case at Cozy Dale Retreat. This resulted in a fairly unceremonious “click” on the other end of the phone.

Point #3: Housing for Older Persons Act of 1995 (HOPA) excerpt:

The Housing for Older Persons Act (HOPA), signed into law by President Clinton on December 28, 1995, amended the housing for older persons exemption against familial status discrimination. The HOPA modified the statutory definition of housing for older persons as housing intended and operated for occupancy by at least one person 55 years of age or older per unit. It eliminated the requirement that housing for older persons have significant services and facilities specifically designed for its elderly residents. It required that facilities or communities claiming the exemption establish age verification procedures. It established a good faith reliance defense or exemption against monetary damages for persons who illegally act in good faith to exclude children based on a legitimate belief that the housing facility or community was entitled to the exemption.

Thanks for reading – hope you’ll share.

Your SRES® Senior Real Estate Specialist,
Kim Novak, RE/MAX Masters
kimnovak@remax.net
(801) 726-1443