|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.
Standard Research Memo
- Highlighted Copies of Key Cases.
- Summaries of Key Cases.
Fair Housing Act, USCS, and case law
Inthe present matter, the community operates under bylaws that permit up to 15% occupancy by those under the age of 55, but it totally precludes residents less than 19 years old.HOPA allowscommunities to permit occupancy by those only 55 years and older and those who are less than the age of 55 years in prescribed proportions. The research in the present matter revolves around whether this community qualifies for “older persons” exemption under HOPA; whether HOPA imposes any age-related standards for those occupants fall within the “under 55” subset; and whetherthe provision in the bylaws proscribing occupancy by anyone less than 19 years-oldviolates any anti-discrimination laws that would preclude its enforcement.
The community qualifies for the “older persons” exemption
In the present query, the community is governed by Housing for Older Persons Act (HOPA), which allows communities to permit occupancy by those only 55 years and older. Those who are less than the age of 55 years may constitute up to 20% of the community if the remaining 80% is composed of people 55 years of age or older.
Under FHA (Fair Housing Act), as amended by the FHAA and HOPA, housing qualifies for the older exemption when it is intended and operated for occupancy by persons 55 years of age or older. To qualify for the "older persons" exception to the Fair Housing Act, 42 U.S.C.S. § 3601, the facility must:
- Have 80 percent of units occupied by at least one person age 55 or older; and
- Publish and adhere to policies and procedures which demonstrate an intent to restrict the residents to those age 55 and older; and
- Provide services specifically designated to meet the physical or social needs of older persons; or, if no such facilities are practical, the facility must demonstrate through credible objective evidence that the housing (iii) facility is necessary to provide important housing opportunities for older persons.
This provision was addressed and affirmed by the court in Putnam Family P'ship v. City of Yucaipa, 673 F.3d 920 (9th Cir. Cal. 2012). The opinion states:
HOPA replaced the Fair Housing Amendments Act of 1988's definition of "housing for older persons" with a provision defining "housing for older persons" as housing intended and operated for occupancy by persons 55 years of age or older, and — (i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older; (ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and (iii) the housing facility or community complies with rules issued by the Secretary of Housing and Urban Development for verification of occupancy, which shall (I) provide for verification by reliable surveys and affidavits; and (II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of 42 U.S.C.S. § 3607(b)(2)(C)(ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification. 42 U.S.C.S. § 3607(b)(2)(C).
In this community, at least one person age 55 or older occupies 85 percent of the units and those under age 55 occupy the rest. Also, the community’s published bylaws demonstrateintent to restrict the residents to those by age 55 and older. We can thus conclude that the community qualifies for the “older person” exemption under FHA and HOPA.
Whether HOPA imposes any age restriction for occupants falling under the age target
The rules for implementation of the HOPA expressly characterize what is often referred to as the 80/20 split. HOPA states that the minimum standard to obtain housing for persons who are 55 years of age or older status is that ‘‘at least 80%’’ of the occupied units be occupied by persons 55 years or older. There is no requirement that the remaining 20% of the occupied units be occupied by persons under the age of 55, nor is there a requirement that those units be used only for persons where at least one member of the household is 55 years of age or older. Communities may decline to permit any persons under the age of 55; they may require that 100% of the units have at least one occupant who is 55 years of age or older; they may permit up to 20% of the occupied units to be occupied by persons who are younger than 55 years of age; or they may 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 so long as such requirements are not inconsistent with the overall intent to be housing for older persons.
We conclude that HOPA requires 80% of the occupants consist of at least one person 55 years of age or older, but it does not impose any age qualifications for the remaining 20% of the occupants.
Limitations contained in the bylaws ofthe community is discriminatory
The community operates under bylawsthat permit 15% occupancy by those under the age of 55, but not less than 19 years old. This could be construed as discrimination on the basis of familial status according to some reported decisions.
Congress enacted the Fair Housing Act, to prohibit housing discrimination on the basis of race, color, religion or national origin. Subsequently, the Fair Housing Amendments Act of 1988 extended the protected classes to include "familial status." Familial status is defined as one or more persons under the age of 18 domiciled with a parent or legal custodian 42 U.S.C.S. § 3602(k). 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.
In the same case the courtheld that a violation of the Fair Housing Act may be established by showing that the challenged actions were either motivated by intentional discrimination or resulted in a discriminatory effect, even absent evidence of a discriminatory motive LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995). In Easthampton, plaintiffs seek to demonstrate a violation of the Fair Housing Act under the intentional discrimination prong. The court stated that once a plaintiff has established a prima facie case of discriminatory effect, a court must determine whether a defendant can justify its challenged conduct. A defendant must establish that the stated justifications serve "in theory and practice, a legitimate, bona fide interest of the Title VIIIdefendant, and . . . that no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact." Easthampton, 155 F. Supp. 2d at 111-112. If the defendant fails to provide a legitimate justification, a violation under the Fair Housing Act is proven. If, however, the defendant produces evidence that no alternative course of action can be adopted in its pursuit of a bona fide interest, the plaintiff bears the burden of demonstrating that other practices are available.
In Ewing Citizens for Civ. Rights, Inc. v. Twp. of Ewing, 2007 U.S. Dist. LEXIS 50826, 13-14 (D.N.J. July 13, 2007) the court interpreted the shift of burden of proof:
To make a prima facie showing of disparate impact, the plaintiff must demonstrate that the defendant's policies or actions have a greater adverse impact on a protected group than others. [Citation omitted] If the plaintiff establishes a prima facie case, the burden shifts to the defendant to(1) set forth a legitimate non-discriminatory reason for the policy or action, and (2) demonstrate that no less discriminatory alternatives were available. Thus, the plaintiff need not show any discriminatory purpose or intent to establish a disparate impact claim under the FHA.
Ewing Citizens for Civ. Rights, Inc. v. Twp. of Ewing at 13-14.
Thus, the community has to prove that no less discriminatory alternative was available.
The community's rules prohibiting occupancy by families with children could constitute the making, printing and publishing of statements with respect to the sale or rental of a dwelling indicates a discrimination based on familial status is in violation of 42 U.S.C.S. § 3604(c). This provision states:
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. 42 U.S.C.S. § 3604(c)
24 CFR 100.304 defines “Housing for persons who are 55 years of age of older”,stating:
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:
- 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
- The alleged violation occurred on or after December 28, 1995 and the housing community or facility complies with:
- Section 807(b)(2)(C) ( 42 U.S.C. 3607(b)) of the Fair Housing Act as amended; and
- 24 CFR 100.305, 100.306, and 100.307.
- For purposes of this subpart, older person means a person 55 years of age or older.
24 CFR 100.304clearly establishes that the provisions regarding familial status do not apply to housing intended and operated for persons 55 years of age or older. However, the community does appear to be discriminating based on familial status amongst the subset of 15 percent under the age of 55.
In United States v. Keck, U.S. Dist. LEXIS 19309 (W.D. Wash. Nov. 15, 1990), the court concluded that the burden of proof is on the housing provider. The court wrote:
§ 100.304 placing the burden on the housing provider is consistent with the general rule that one who claims the benefits of an exemption carries the burden of proving his entitlement to it [citation omitted] Housing providers already bear the burden of establishing their qualification for other exemptions afforded by the Fair Housing Act [citation omitted] Such exemptions are to be narrowly construed.
The bylaws by the community need to be reviewed.InBernards Tp. v. State Dept. of Community Affairs, 233 N.J. Super. 1, 8-9 (App. Div. 1989), the court discussed the standards for review of rule making:
First, if the rule is not arbitrary, capricious, unreasonable or irrational, it will be upheld Second, the rule must carry out the will of the legislature Hotel Suburban System, Inc. v. Holderman, 42 N.J. Super. 84, 91 (App.Div.1956) and the regulation must fall within the express or implied grant of power to the agency in the enabling legislation [Citation Omitted]
In Seniors Civil Liberties Ass'n v. Kemp, 965 F.2d 1030, 1034 (11th Cir. Fla. 1992) the court interpreted the will of the legislature:
The legislative history of the Act and the amendments to the Act show that Congress sought to ban discrimination in all housing transactions, including sales to families with children. e.g. H.Rep. No. 711, 100th Cong., 2d Sess. 19 (1988) U.S.Code Cong. & AdminNews 1988, p. 2175, 2180 (Describing national familial status discrimination and noting that one reason for passing 1988 amendments was because only sixteen states had law prohibiting familial status discrimination, and of these sixteen, nine states did not cover sales of housing).
In the present query, the restriction imposed by the community bylaws is arbitrary in nature and can be argued to run counter to legislative intent by imposing a condition that establishes a de facto discrimination against families. We believe thata reviewing court would likely nullify this provision on the bylaws.
Based on the statutes, case law, facts, and prevailing circumstances described above, we believe that the community qualifies for the older person exemption under the Fair Housing Act. HOPA only mentions the age limit for occupants age 55 or above but not for occupants falling under the age 55 bracket. The condition imposed by the community bylaws discriminates against the resident with the child because of familial status, which is prohibited under the Fair Housing Act. Several court decisions support this conclusion. The client in the present case should be allowed to live within the residence because the bylaws create a discriminatory situation based on an arbitrary standard.
1. Highlighted copies of Key Cases.
2. Summaries of Key case.
3. Referred Statutes.
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