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, 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.)
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 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.)
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