Can “55+” Communities Ban Children?

The federal Fair Housing Act came into effect in 1989. It barred landlords and homeowners from discriminating against tenants or buyers based on characteristics, among them including such as race/color, disability, and ‘familial status.’ This term was added one year later, and is generally construed to mean whether or not someone has children. A Florida landlord may not discriminate against families with children – except in one situation. So-called 55+ communities generally may prohibit families with children from living among them.

Exemption Criteria Must Be Met

Florida’s own Fair Housing Act includes the same characteristics as the federal FHA, but the term ‘familial status’ was not added to the list of protected characteristics until the following year, when the U.S. Housing for Older Persons Act (HOPA) came into being. The HOPA carves out an exception to the FHA to allow people who are over the age of 55 to live in communities together – however, these communities must meet the criteria for the exemption in order to prohibit families with young children.

In order to qualify for the exemption, a community must meet all three specified criteria. They are:

• At least 80 percent of the units in the community must have at least one occupant over the age of 55;
• The community must advertise and adhere to policies that perpetuate the intent to operate the community as 55+; and
• The community must allow the Department of Housing & Urban Development (HUD) to exercise their ‘regulatory requirements’ in verifying the age of community residents.

How To Use The 20 Percent?

While the law is fairly clear-cut about who may and may not be barred from renting or owning in certain communities, it is important to keep in mind that communities’ deed restrictions may also contain provisions that govern these issues. For example, a big question is how the remaining 20 percent of the community’s units are distributed. In theory, anyone could rent those units, as long as 80 percent of them are filled by at least one person over the age of 55 – but in reality, many community associations in Florida use them as a ‘hardship cushion.’

What this means is that instead of renting these units to anyone who might ask, they are kept in reserve for long-term residents who no longer meet the 55+ requirement. One of the most common examples of this is a grandparent raising a younger grandchild; if the grandparent passes away when the grandchild is a young adult, many communities will allow them to stay in the community in order to help ease such a momentous life transition.

Contact A Tampa Community Association Attorney

Tampa has many 55+ communities, but it is important that they continually establish themselves as meriting an exemption from the Fair Housing Act. If you have questions about a community association and your rights, a Tampa community association attorney from the Seward Law Office may be able to assist. Call our office today to schedule a consultation.

Source:

hud.gov/program_offices/fair_housing_equal_opp/fair_housing_act_housing_older_persons