Senior Community Laws
Federal Laws. 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, associations must satisfy the following requirements:
- At least 80% of the occupied units must be occupied by at least one person 55 years of age or older. [Communities can, if they so choose, require that 100% of the units have at least one occupant who is 55 years of age or older.];
- Publish and follow policies that demonstrate an intent by the association to provide housing for persons 55 years of age or older; and
- Comply with age verification procedures designed to ensure compliance with 55+ requirements.
Residential communities that have continuously operated as a senior community can qualify as a 55+ community by showing that it satisfies the criteria described above. (Balvage v. Ryderwood.) See HOPA Q&A and HOPA Rules.
State Laws. 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 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. Once properly established, age restrictions are enforceable through the courts. (Huntington Landmark v. Ross.)
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. Even so, Communities may decline to permit any persons under the age of 55, may require that 100% of the units have at least one occupant who is 55 years of age or older, may permit up to 20% of the occupied units to be occupied by persons who are younger than 55 years of age, or set whatever requirements they wish, as long as ‘‘at least 80%’’ of the occupied units are occupied by one person 55 years of age or older, and so long as such requirements are not inconsistent with the overall intent to be housing for older persons. (Housing for Older Persons Act of 1995, Pub. L. 104–76, 109 Stat. 787, approved December 28, 1995.)
Age Verification
Anyone can buy into a senior community but not everyone can reside in one. The age restriction applies to residents. By statute, senior communities engage in permissible age discrimination. See DRE Real Estate Bulletin (Spring 2019). To maintain the right to exclude people on the basis of their age, HUD requires that senior communities meet the following criteria:
- At least 80% of the occupied units must be occupied by at least one person 55 years of age or older;
- The association must publish and follow policies that demonstrate an intent by the association to provide housing for persons 55 years of age or older; and
- The association must comply with age verification procedures designed to ensure compliance with 55+ requirements.
HOPA requires that a housing facility/community re-survey its lists of residents every two years to ensure that the 80% requirement is met. To meet age verification requirements, the following documents are deemed “reliable” by HUD:
- birth certificate,
- driver's license,
- passport,
- immigration card,
- military ID, and
- any other local, state, federal or international documentation so long as the document contains information regarding the age of the person.
Self-Verification. HUD also considers self-certification through an affidavit as a reliable form of verification. An affidavit is a sworn statement under penalty of perjury by an adult member of the household that at least one occupant is 55 years of age or older. If some occupants fail or refuse to cooperate with age verification surveys, the association can have a knowledgeable third party (a board member, manager, neighbor, etc.) sign a verification that at least one of the occupants is 55 years or older. You can also use statements indicating age in prior applications or government documents such as census data, i.e., household censuses conducted by cities or towns, to satisfy the requirement.
Failure to Enforce. Senior communities that fail to strictly enforce age restrictions can lose their status as a senior community.
Children as Caregivers
QUESTION: Is there any law on caregivers and how young they can be? We have children who are going to school and grandparents let them stay as caregivers. We are a 55+ senior community.
ANSWER: There is no age-limit for caregivers in senior communities. The defined term is a “permitted healthcare resident” (Civ. Code § 51.3 and § 51.11) and they can be a family member of the senior as long as the care they provide is substantial in nature and necessary for the senior’s daily activities or medical treatment or both. Since California considers a 16-year-old mature enough to work and drive a car, it is likely they would be deemed capable of providing care to a senior.
Mobilehome Communities. Mobilehome senior communities have a separate set of statutes governing them, two of which set the age restriction for caregivers at 18 or older. Civil Code § 798.34(c) provides that owners can share their mobile home with any person over 18 years of age if that person is providing live-in health care or live-in supportive care to the homeowner pursuant to a written treatment plan prepared by the homeowner’s physician. Civil Code § 799.9(b) similarly states that an owner who resides in a senior mobilehome park may share his mobilehome with any person 18 years of age or older if this person is a parent, sibling, child, or grandchild of the senior homeowner and requires live-in health care, live-in supportive care, or supervision pursuant to a written treatment plan prepared by a physician and surgeon.
If an association is concerned with whether a person is really a caregiver or other qualified permanent resident, it can enact rules and policies which require any person residing with a senior verify the care being provided.
Children at the Swimming Pool
Senior communities can impose restrictions on children that other associations cannot. Association boards in 55+ communities can set separate pool hours for children and adults.
Federal Statutes. Under the Housing for Older Persons Act of 1995 (HOPA), senior communities are exempt from the Fair Housing Act’s prohibition against discrimination against children, i.e., discrimination on the basis of familial status. As such, senior communities can limit or even prohibit children from using recreational common facilities. According to the Department of Housing and Urban Development (HUD):
If a housing community facility qualifies under HOPA as housing for older persons, the community facility is exempt from the Act's prohibition against discrimination on the basis of familial status. The housing community facility may restrict families with children from the benefits of the community or otherwise treat family households differently than senior households... (HUD Guide).
California Statutes. California has similar exceptions. Civil Code § 51.3 legalizes senior communities and Government Code § 12955.9(a) provides that familial status discrimination prohibitions do not apply in retirement communities.
Case Law. The Sunrise Country Club Assn. v. Proud case upheld a community association’s practice of creating separate “adult only” and “family” areas on the basis that they were not unreasonable and thus did not violate applicable laws, including the Unruh Act which precludes discrimination by businesses within the State of California. The Unruh Act does not prohibit all age-based discrimination, only that which is unreasonable, arbitrary or invidious.
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