Because of the shortage of accessible housing for seniors, the government has created an exemption to anti-discrimination housing laws, allowing certain housing developments to be reserved for older generations.
Senior housing is governed by both federal law and state law. On the federal level, there is the Housing for Older Persons Act (HOPA). The Housing for Older Persons Act of 1995 (HOPA) (Pub.L. 104–76, 109 Stat. 787, enacted December 28, 1995) creates an exception to Title VIII of the Civil Rights Act of 1968 (Fair Housing Act) in order to allow for senior housing developments.
The Fair Housing Act protects all residents from discrimination on the basis of race, color, national origin, religion, sex, handicap or familial status.
Senior housing facilities and communities are exempt from liability for familial status discrimination under HOPA. Exempt senior housing facilities or communities can lawfully refuse to sell or rent dwellings to families with minor children. In order to qualify for HOPA, a facility or community must prove through resident surveys and affidavits that its housing is:
- Provided under any State or Federal program that The United States Department of Housing and Urban Development (HUD) has determined to be specifically designed and operated to assist elderly persons (as defined in the State or Federal program); or
- Intended for, and solely occupied by persons 62 years of age or older; or
- Intended and operated for occupancy by persons 55 years of age or older.
In order to qualify for the “55 or older” housing exemption, a facility or community must satisfy each of the following requirements:
- At least 80 percent of the units must have at least one occupant who is 55 years of age or older; and
- The facility or community must publish and adhere to policies and procedures that demonstrate the intent to operate as “55 or older” housing; and
- The facility or community must comply with HUD’s regulatory requirements for age verification of residents.
Case law has determined that if an association has consistently maintained the required 80% threshold but has previously failed to comply with HOPA’s age-verification requirements, including the required surveys and affidavits, that in itself will not disqualify the association from being afforded HOPA’s protections. (Balvage v. Ryderwood Improvement Services Assn. (9th Cir. 2011) 642 F.3d 765.)
HOPA does not protect senior housing facilities or communities from liability for housing discrimination based on race, color, religion, sex, disability, or national origin.
States have the power to enact laws that are more protective of individual rights than the standard set by federal law. Certain states set their own fair housing legislation, which requires a resident of that state to adhere to both federal and state housing regulations. California’s State Civil Code, Section 51.3, outlines California’s senior-exemption to the Unruh Civil Rights Act. Unruh prohibits discrimination based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation.
In order to be able to restrict sale or rental of a property to seniors in California, the resident must be 62 years of age or older, or 55 years of age or older in a senior citizen housing development. “‘Senior citizen housing development’ means a residential development developed, substantially rehabilitated, or substantially renovated for, senior citizens that has at least 35 dwelling units. Any senior citizen housing development which is required to obtain a public report under Section 11010 of the Business and Professions Code and which submits its application for a public report after July 1, 2001, shall be required to have been issued a public report as a senior citizen housing development under Section 11010.05 of the Business and Professions Code. No housing development constructed prior to January 1, 1985, shall fail to qualify as a senior citizen housing development because it was not originally developed or put to use for occupancy by senior citizens.” Civil Code section 51.3(b)(4).
In California, all the units in a dwelling, rather than just 80% of units, must house seniors. It is not enough to have only 80% of the units occupied by a senior, as outlined under the HOPA Act. California state law allows a senior to reside with a spouse, domestic partner or person providing primary physical or economic support to the senior, who is also 45 years of age or older; and/or a disabled child or grandchild of the senior, spouse or partner, who must live in the household due to a disability.