Ask the Attorney By Nigel Mendez, Esq., Carlson & Associates, Ltd.
This column is comprised of questions that have been posed to me by homeowners, property managers and related professionals regarding legal issues that they have encountered with respect to their associations. Discussion of these questions, as well as prior questions, can be found on the CAI-MN LinkedIn page: www.linkedin.com/groups?gid=1769135
Q:
I live in an association that is supposed to be for seniors, but a family with children recently moved in. Is that allowed?
A:
As most of my answers seems to start, maybe. The Fair Housing Act (FHA) prohibits discrimination in the rental and sale of housing on the basis of, among other things, familial status and age. However, there is an exception if the association is being run as senior housing, or a 55+ association. The exception is detailed in the Housing for Older Persons Act (HOPA). HOPA allows for associations to legally discriminate based on age, provided that the association follows the strict guidelines imposed by HOPA. These guidelines govern the marketing of the units in an association, who may reside in a unit, and how often the association must verify that the age requirements are being met.
What age limits can you set? The minimal standard for a HOPA compliant association is that at least 80 percent of the units must be occupied1 by one person who is 55 years of age or older. By default, the other 20 percent of the units do not have any age restrictions. This is commonly referred to as an “80/20 association,” and it can lead to many misunderstandings. Often a resident who is over the age of 55 believes that everyone in the association must be over 55 years of age. That is usually incorrect. Most of the HOPA associations that I have worked with are the “standard” 80/20 associations. It is acceptable to have 20 percent of the units occupied by individuals, none of whom are 55 or older. In addition, the restriction for the other 80 percent of the units is not that everyone residing therein is over the age of 55, but just that one resident is at least 55. The remaining occupants can be any age at all. However, not all is lost for associations that wish to limit occupancy to the senior crowd. While the 80/20 setup is the default floor, associations are able to impose stricter requirements. For example, an association could: (1) require that 80 percent of the units have an occupant that is at least 65 years old; (2) set the percentage of units that must meet the age requirement to higher than 80 percent, or (3) even set a minimum age of all occupants.
Must show intent to be age restricted A large part of complying with the HOPA guidelines deals with how you present your association to the public. You must describe the association as “an age 55+ community,” “senior housing,” or a “retirement community.” The HOPA guidelines discourage use of the term “adult” as in “adult living” or “adult housing.” The declaration for your association should state clearly on the first page that this is a senior housing facility, or state your specific age restrictions. In addition, the association must have in place policies and procedures that demonstrate the intent to provide housing to persons 55 years of age or older. Such policies and procedures include the following: (i) written rules, regulations and other governing documents establishing the age requirements; (ii) actual practices utilized by the community for the enforcement of the rules; (iii) advertising used to attract prospective residents to the 1 The requirement is occupied — not owned. A parent who purchases for a younger child would not meet the age requirement unless there was at least one occupant over 55 living in the unit.
Continued on page 26 24
Minnesota Communit y Living