Fair Housing Update: month 2005

Washington State
FAIR HOUSING UPDATE

How to Convert to
"Housing for Older Persons"

HOPA Background

The Fair Housing Act and the Housing for Older Persons Act (HOPA) state that communities and facilities that have met certain conditions demonstrating an affirmative intent to provide housing for older persons are exempt from prohibitions against familial status discrimination. This means housing that meets the HOPA definition may legally exclude families with children.

The HOPA law includes three separate categories of housing:

housing provided under any State or Federal program that is specifically designed and operated to assist elderly people; or
housing intended for, and solely occupied by, people 62 years of age or older; or
housing intended and operated for occupancy by people 55 years of age or older where at least 80% of the occupied units have at least one person who is 55+, where the housing facility/community publishes and adheres to policies and procedures that demonstrate the intent required under this law, and the housing facility or community complies with HUD rules for verification of occupancy.

(Note: Not counted are employees under 55 who live on-site and disability caretakers under 55. Temporarily vacant units count toward the 80% if the prior occupant was over 55.)

The HOPA exemption applies only to the familial status prohibitions of the Fair Housing Act — the housing community cannot discriminate on the basis of other protected classes such as race, disability, national origin, etc. HOPA does not permit a housing provider to operate a dual-purpose facility where some units or sections are designated for older persons and others are open to everyone.

Advertising for HOPA housing can indicate a preference, limitation, or discrimination in favor of older persons without violating the Fair Housing Act. Such advertising is affirmative evidence that a facility qualifies for the HOPA exemption.

The HOPA regulations established a transition period for existing communities or faciilties to become housing for older persons, which expired on May 3, 2000. There are now two ways to establish housing for older persons - conversion and new construction.

Conversion

An existing community or facility can convert to "housing for older persons" if 80% of its units become occupied by at least one person 55 or older. Housing providers cannot discriminate against families with children in order to achieve 80% occupancy. A community or facility cannot reserve unoccupied units for persons 55 and older, or advertise itself as housing for older persons, or evict families with children in order to reach the 80% threshold.

If a family with children seeks to occupy a vacant unit in an existing facility before it has met all of the requirements necessary to become housing for older persons, the housing provider must permit the family to live there. Also, the facility may not make existing families with children feel unwelcome or otherwise encourage those families to move. However, nothing prevents the offering of positive incentives that might lead some families to seek housing elsewhere.

If the community or facility achieves the 80% threshold, without discriminating against families with children, it may then publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 or older and comply with verification of occupancy rules. The facility or community cannot publish such policies or procedures before they meet the 80% threshold, because such policies and procedures would have a chilling impact upon potential applicants or current occupants who are families with children.

New Construction

A second way to establish housing for older persons is to construct a new housing community or facility and meet all three HOPA requirements:

80% of the occupied units are occupied by at least one person 55 years of age or older.
The housing community or facility publishes and adheres to policies and procedures that demonstrate an intent to provide housing for persons 55+.
The community or facility complies with rules issued by HUD for verification of occupancy through reliable surveys and affidavits.

Newly constructed housing includes a facility or community that has been entirely unoccupied for at least 90 days prior to reoccupancy, due to renovation or rehabilitation. Newly-constructed housing is permitted to discriminate against families with children until 25% of its units are occupied. If, at that time, the housing community or facility does not have a resident 55 years or older in at least 80% of occupied units, then the community or facility may not discriminate against families with children.

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Updated: June 25, 2006

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