A "Seniors-Only" Primer

If you list, sell, or rent units in ‘over 55’ communities, be careful to follow the letter of the law.

October 1, 2011

The Fair Housing Act prohibits discrimination against households with children. This “familial status” prohibition is one of the law’s seven protected classes. But there’s an important exemption to this prohibition: senior housing. Housing communities intended for seniors can legally limit access to households with children. You can get tripped up under the law if you’re listing, selling, or renting a unit in one of these seniors-only properties but don’t understand how the exemption works. So, here’s a primer to help you stay on the right side of the law.

Communities are considered senior housing under the familial status exemption if the units are either 100 percent occupied by persons over 62 years or 80 percent of the occupied units are inhabited by at least one person 55 years or older.

Good Faith Defense

As a real estate professional, you’re given immunity from damages for a violation of the Fair Housing Act if you reasonably relied on the application of the 55-and-older exemption before the date that the alleged discrimination occurred. This defense provides you immunity even where a facility or community is later determined not to have qualified. But to be protected, you must obtain a written statement from the community that says it qualifies for the exemption. Of course, if you know the community doesn’t qualify, even if you receive a written assurance to the contrary, that assurance won’t provide a valid defense for you.

Children On the Premises

Because the exemption allows up to 20 percent of the units to be occupied by families with children, provided that the community or facility doesn’t violate state or local antidiscrimination law, these families can lawfully be restricted from certain benefits of the community or otherwise treated differently than the senior households. For example, families with children could be restricted from use of the community center or be allowed to use the pool only during certain hours. And, of course, the housing facility or community doesn’t have to allow families with children to move in at all.

Care Providers Exclusion

Any caregivers living in the community as attendants, health-care providers, or family-care providers aren’t counted as part of that 80 percent rule. This applies whether the caregivers live in the same unit as the senior they’re assisting or in a separate unit. Therefore, your clients shouldn’t be discouraged from seeking “senior housing” if they’ll require additional assistance to accommodate a disability nor should they be rejected from a senior community based on this fact.

Advertising Best Practices

To meet the requirements of the 55-and-older exemption, the community must publish and adhere to policies and procedures that demonstrate the intent to operate a 55-and-older community. A best practice, when preparing marketing or advertising for these types of listings, is to refer to these communities as “senior housing” or a “55-and-older community.” The phrase “adult community” won’t work; it can expose the community to complaints about its eligibility for the exemption and subject you to alleged discriminatory practices based on familial status.

Sales and Rentals Covered

The “housing for older persons” exemption extends to both sale and rental properties. Be sure to do your due diligence about a community if it attempts to deny housing or to evict a tenant where you suspect that the property doesn’t qualify for the exemption.

This carefully carved-out exemption provides older Americans the opportunity to live together in communities designed for their social and physical needs. As real estate agents, remember these tips to help protect the interests of older adults as well as your interests as a practicing real estate agent.