|FROM:||The Legal Taxi|
|RE:||Restriction under HOPA|
Restriction under HOPA.
Whether HOPA imposes any age restriction for occupants falling in 20% of the community, comprising “Under 55 years” segment? What action can the community take for violations of the community by laws.
The issue comes under the provisions of the Housing for Older Persons Act of 1995 (HOPA), which is administered under Department of Housing and Urban Development (HUD). The statute allows communities to permit occupancy by those only 55 years and older and at the same time it also allows for such communities to permit occupancy by those less than the age of 55 years up to comprise up to 20% of the community if the remaining 80% of the occupants are above 55 years of age. In our case, the community operates under bylaws that permit 15% occupancy by those under the age of 55, but not less than 19 years old. The remaining 85% must be 55 or older. This should comport with the regulations under the HOPA, as it appears that HOPA allows for a community to permit any percentage up to 20% to be less than 55 years old. However, we have a client who is under the age of 55 and who purchased a home in the community as a part of the subset permitted in the 15% contingency, but his since his purchase he had a child. While we believe that the HOPA would permit for the occupancy of the child because it does not impose any restrictions on that portion designated to be occupied by those under the age of 55 (up to 20% of the community), the community’s bylaws do preclude any occupants less than 19 years of age. The home in question is a townhouse, which is a type of attached home where the resident owns the inside of the home, but not the exterior of the home. The exterior is maintained by the community.
Attached is publication which sets forth some of the more recent changes enacted in 1999 to the HOPA for your review and should probably have all the leads you need to perform the research. In the memo, please indicate any portions of the HOPA or any case law that indicates that it is not inconsistent to have residents under the age of 55, without any restrictions on age, so long as 80% is comprised of 55 and older.
- Relevant Statute & Case
- Summaries of Key Cases.
- To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
- To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
- To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. [Section Omitted]
(k)"Familial status" means one or more individuals (who have not attained the age of 18 years) being domiciled with—
- a parent or another person having legal custody of such individual or individuals; or
- the designee of such parent or other person having such custody, with the written permission of such parent or other person.
The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years. [Section Omitted]
It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States
(a) The provisions regarding familial status in this part shall not apply to housing intended and operated for persons 55 years of age or older. Housing qualifies for this exemption if:
(1) The alleged violation occurred before December 28, 1995 and the housing community or facility complied with the HUD regulations in effect at the time of the alleged violation; or
(c) For purposes of this subpart, older person means a person 55 years of age or older.
Please find the attached document for highlighted copy of key case:
Please find the attached document for summary of key case:
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