Federal Law. The Federal Fair Housing Act prohibits discrimination based on family status, meaning an association's CC&Rs cannot exclude children. However, Congress made an exception for senior communities when it enacted the "Housing for Older Persons Act of 1995" (HOPA). To qualify as a senior community, the association must meet the following requirements:

• at least 80% of all units must be occupied by at least one person 55 years of age and older;

• the association must publish and follow policies demonstrating an intent by the the association to provide housing for persons 55 years of age or older; and

• the association must also engage in appropriate age verification procedures designed to ensure that occupancy percentages comply with the 55 and over requirement.

State Law. California made similar accommodations for senior communities in the Unruh Act. To qualify as a senior community, CC&Rs must state that at least one person in the dwelling must be required to be a senior citizen, i.e, a qualified permanent resident (55 years of age or older or 62 years of age or older depending on the category of the senior community) and that each other resident in the same dwelling must be a qualified permanent resident.

A “qualified permanent resident” is defined as someone who is residing with the qualifying resident in a senior citizen community is 45 years of age or older, or was a spouse, or cohabitant providing physical or economic support to the qualifying resident. Underage health care providers also are allowed to live with the senior resident.

A person under 55 years of age can reside alone in a senior community as Civil Code §51.3 states that a qualified permanent resident is entitled to continue his or her occupancy, residency or use of the dwelling as a permitted resident upon the death of the senior citizen or dissolution of his or her marriage, or upon the senior citizen’s hospitalization, or other prolonged periods of illness.

Mobilehome Parks. The Fair Housing Amendments Act of 1988 allows 20% of the units to be temporarily occupied by underage heirs (plus other exceptions). The remaining 80% of the units must be occupied by at least one senior using it as their primary residence. The association must publish its occupancy standards and verify compliance within with reliable surveys.

RECOMMENDATION:  There are other restrictions depending on the type of community, its location (urban or rural), and the facilities/services it offers. The boards of retirement communities should retain experienced counsel to advise them on issues related to their communities.