When the subject of active adult communities comes up, people commonly wonder whether age-restricted communities are actually legal. The Fair Housing Act protects homebuyers and renters from discrimination based on several factors, so it seems like it should keep developers from closing their doors to residents under a certain age. However, as long as they meet certain requirements, these communities are not breaking any laws.
Established in 1968, the Fair Housing Act protects homebuyers and renters from discrimination based on seven different areas: race, color, sex, national origin, religion, familial status and disability. Age is not a protected class under the federal Fair Housing Act.
Many states do have their own fair housing laws which include additional protected classes such as marital status, sexual orientation and ancestry. Under these laws, each state can also allow for age protection, which would begin at a defined age, but most do not prevent communities from being exclusive to older adults as they recognize the benefit of senior housing programs.
While age is not a protected class under the Fair Housing Act, the law does prevent discrimination based on familial status. In this case, familial status refers to households which include pregnant women or children under the age of 18. However, the Housing for Older Persons Act of 1995 (HOPA) provides exemptions to familial status if a community meets either of the following conditions:
1. All of the occupants of the community are over the age of 62.
2. At least 80 percent of the occupied units include at least one resident who is verified to be over the age of 55, and the community follows a policy that demonstrates an intent to provide housing for those aged 55 or older.
Once a community meets the HOPA requirements, they are free to create their own rules for how they will define their age restriction, as long as they are in compliance with state laws. The community can make the age-restriction more strict than the HOPA requirement, such as stating that all of the residents must be over 55 or that 80 percent of the households must include a resident aged 60 or better.
Most age-restricted communities have two restrictions. The first says that each household (or 80 percent of the households) must include a resident over the age of 55. The second adds an age restriction for the remaining members of the household, such as being over the age of 40 or simply over the age of 18. They can even set guidelines for how long underage visitors (such as grandchildren) are allowed to stay with community residents.
To attract younger buyers, active adult communities can also set lower age restrictions (or no age restrictions) in 20 percent of the development. This can be tricky as a full 80 percent of the occupied units must have at least one resident over the age of 55 to qualify for the HOPA exemption. To be safe, many communities only allow younger households in a smaller portion, such as 15 percent of the development.
While age-restricted communities must be in compliance with both their state and federal laws, there are exemptions which let them legally limit the age of their residents. To learn more about the Fair Housing Act and HOPA exemptions, you can visit the U.S. Department of Housing and Urban Development (HUD) online or read their helpful HOPA questions and answers document.