Effective July 1, 2020, the Florida legislature eliminated the requirement for 55+ communities to register with the Florida Commission on Human Relations (“FCHR”), and eliminated the need to submit a letter to the FCHR every two years stating that the association complies with the requirements to be considered housing for older persons under state and federal law. However, that did not eliminate the other requirements a 55+ community must comply with to maintain its 55+ status, including the need to conduct a survey of residents every two (2) years as further noted below.
Title VIII of the Civil Rights Act of 1968 (the Federal Fair Housing Act), as amended by the Fair Housing Amendments Act of 1988 (the Fair Housing Act), prohibits discrimination in housing and real estate-related transactions based on race, color, religion, sex, national origin, handicap and familial status (in general, the presence of children under the age of 18 in the household). The prohibition against discrimination based on familial status became effective March 12, 1989. The Act contained a provision exempting “senior” housing from the prohibition against familial status discrimination.
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.
Generally, to be classified as a 55+ community the Association must satisfy the following criteria:
- At least eighty percent (80%) of the occupied units must be occupied by at least one person aged 55 or over;
- You must publish and adhere to policies and procedures demonstrating an intent to provide housing for persons 55 years of age or older; and
- You must engage in appropriate age verification procedures designed to ensure that future occupancy complies with the 55 and over requirements.
The Third criterion requires the Association to engage in appropriate age verification procedures designed to ensure that future occupancy complies with the 55 and over requirements. Verification procedures are found at 24 C.F.R. Section 100.307, and states:
- 100.307 Verification of occupancy.
- (a) In order for a housing facility or community to qualify as housing for persons 55 years of age or older, it must be able to produce, in response to a complaint filed under this title, verification of compliance with § 100.305 through reliable surveys and affidavits.
- (b) A facility or community shall, within 180 days of the effective date of this rule, develop procedures for routinely determining the occupancy of each unit, including the identification of whether at least one occupant of each unit is 55 years of age or older. Such procedures may be part of a normal leasing or purchasing arrangement.
- (c) The procedures described in paragraph (b) of this section must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place at least once every two years. A survey may include information regarding whether any units are occupied by persons described in paragraphs (e)(1), (e)(3), and (e)(4) of § 100.305.
- (d) Any of the following documents are considered reliable documentation of the age of the occupants of the housing facility or community:
- Driver’s license;
- Birth certificate;
- Immigration card;
- Military identification;
- Any other state, local, national, or international official documents containing a birth date of comparable reliability; or
- A certification in a lease, application, affidavit, or other document signed by any member of the household age 18 or older asserting that at least one person in the unit is 55 years of age or older.
- (e) A facility or community shall consider any one of the forms of verification identified above as adequate for verification of age, provided that it contains specific information about current age or date of birth.
- (f) The housing facility or community must establish and maintain appropriate policies to require that occupants comply with the age verification procedures required by this section.
- (g) If the occupants of a particular dwelling unit refuse to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older. Such evidence may include:
- Government records or documents, such as a local household census;
- Prior forms or applications; or
- A statement from an individual who has personal knowledge of the age of the occupants. The individual’s statement must set forth the basis for such knowledge and be signed under the penalty of perjury.
- (h) Surveys and verification procedures which comply with the requirements of this section shall be admissible in administrative and judicial proceedings for the purpose of verifying occupancy.
- (i) A summary of occupancy surveys shall be available for inspection upon reasonable notice and request by any person.
If an association follows the above steps, it will be in compliance with the federal and state regulations to maintain its status as housing for older persons. If these requirements have not been strictly adhered to, then the association is not in compliance with HOPA and the Association’s 55 and over status may be in jeopardy. Of course, if you have any questions regarding the above requirements, you should contact your association attorney.