Implementation of the Housing for Older Persons Act of 1995 - Final Rule

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of the Secretary AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.

ACTION: Final rule.

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SUMMARY: This rule implements the Housing for Older Persons Act of 1995
(HOPA). HOPA amended the requirements for qualification for the housing
for persons who are 55 years of age or older portion of the ``housing
for older persons'' exemption established in the Fair Housing Act. In
addition, HOPA established a good faith defense against civil money
damages for persons who reasonably relied in good faith on the
application of the ``housing for older persons'' exemption even when,
in fact, the housing provider did not qualify for the exemption. This
rule updates HUD's regulations to reflect the changes made by HOPA.

EFFECTIVE DATE: May 3, 1999.

FOR FURTHER INFORMATION CONTACT: Sara K. Pratt, Director, Office of
Enforcement, Office of Fair Housing and Equal Opportunity, Room 5206,
451 Seventh Street, SW, Washington, DC 20410-0500, telephone (202) 708-
0836. (This is not a toll-free number.) Hearing or speech-impaired
individuals may reach this office by calling the toll-free Federal
Information Relay Service (TTY) at 1-800-877-8399.

SUPPLEMENTARY INFORMATION:

Information Collection Requirements

The information collection requirements contained in Secs. 100.306
and 100.307 of this rule have been submitted to the Office of
Management and Budget (OMB) for review under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501-3520) and have been assigned approval
number 2529-0046. An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless the
collection displays a valid control number.

I. Background

A. The Housing for Older Persons Act of 1995

The Fair Housing Act (Title VIII of the Civil Rights Act of 1968,
as amended, 42 U.S.C. 3601-3619) (the Act) exempts ``housing for older
persons'' from the Act's prohibitions against discrimination because of
familial status. Section 807(b)(2)(C) of the Act exempts housing
intended and operated for occupancy by persons 55 years of age or older
which satisfies certain criteria. HUD has adopted implementing
regulations further defining the ``housing for older persons''
exemption at 24 CFR part 100, subpart E.
The Housing for Older Persons Act of 1995 (Pub. L. 104-76, 109
Stat. 787, approved December 28, 1995) (HOPA) revised the definition of
the original exemption contained in the Act for housing designed and
operated for occupancy by persons who are 55 years of age of older.
Section 2 of HOPA redefined this portion of the exemption to describe
housing:

(C) 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 HUD] 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
clause (ii). Such surveys and affidavits shall be admissible in
administrative and judicial proceedings for the purposes of such
verification.

The new requirements under HOPA are equivalent to the original
provisions of the Fair Housing Act. Like the original section 807(b)(C)
of the Act, HOPA requires that a facility or community seeking to claim
the 55 and older exemption show three factors: (1) That the housing be
intended and operated for persons 55 years of age or older; (2) that at
least 80 percent of the occupied units be occupied by at least one
person who is 55 years of age or older; and (3) the housing facility or
community publish and adhere to policies and procedures that
demonstrate its intent to qualify for the exemption. The housing
facility or community must also comply with rules issued by HUD for the
verification of occupancy.
One substantive change made by HOPA was the elimination of
``significant facilities and services'' previously required by the Act
to meet the 55-and-older exemption. Section 807(b)(2)(C) of the Act
originally required that housing designed for persons who are 55 years
of age or older provide ``significant facilities and services
specifically designed to meet the physical or social needs of older
persons.'' HOPA also added the new requirement that a housing facility
or community seeking the 55-and-older exemption comply with HUD
regulations on verification of occupancy.
In addition, section 3 of HOPA added a new section 807(b)(5) to the
Act. This new section established a good faith defense against civil
money damages for a person who reasonably relies in good faith on the
application of the housing for older persons exemption, even when, in
fact, the housing facility or community does not qualify for the
exemption. New section 807(b)(5) provides:

(5)(A) A person shall not be held personally liable for monetary
damages for a violation of this title if such person reasonably
relied, in good faith, on the application of the exemption under
this subsection relating to housing for older persons.
(B) For purposes of this paragraph, a person may only show good
faith reliance on the application of the exemption by showing that--
(i) such person has no actual knowledge that the facility or
community is not, or will not be, eligible for such exemption; and
(ii) The facility or community has stated formally, in writing,
that the facility or community complies with the requirements for
such exemption.

B. This Rule

This rule revises Sec. 100.304, which presents an overview of the
exemption, to more closely track the HOPA requirements. The rule also
creates a new Sec. 100.305, which updates the 80 percent occupancy
requirements. A new Sec. 100.306 describes how a facility or community
may establish its intent to operate as housing designed for persons at
least 55 years of age or older. New Sec. 100.307 sets forth the
necessary procedures for verification of the 80 percent occupancy
requirements. Finally, a new Sec. 100.308 implements the good faith
defense against civil money damages.
Section 2 of HOPA requires that any implementing HUD regulations
``include examples of the types of policies and procedures relevant to
a determination of compliance with'' the statute's intent requirement.
Accordingly, paragraph (a) of Sec. 100.306 lists several factors which
HUD considers relevant in determining whether the housing facility or
community intends to operate as housing for older persons. Section
100.306(b) states, however, that such

[[Page 16325]]

phrases such as ``adult living'', ``adult community'', or similar
statements are inconsistent with the intent to establish housing for
older persons. Such phrases are not evidence that the facility or
community intends to operate as housing for older persons and are
inconsistent with that intent. HUD, in order to make an assessment of
intent, will consider all of the measures taken by the facility or
community to demonstrate the intent required by the Act. Moreover, the
housing facility or community may not evict or terminate leases of
families with children in order to achieve occupancy of at least 80
percent of the occupied units by at least one person 55 years of age or
older.
HUD also provides guidance to assist housing facilities and
communities in applying the requirements of this rule. These examples
are contained in an appendix to this rule. The appendix will not be
codified in title 24 of the CFR. HUD may update or revise the appendix
as necessary.

C. Discussion of Public Comments on the January 19, 1997 Proposed
Rule

The Housing for Older Persons Act (HOPA) was a remedial amendment
to the Fair Housing Act overwhelmingly passed by Congress in an attempt
to clarify the Act's senior housing exemption which Congress found was
being effectively repealed by the judicial and administrative
interpretation which the exemption had received.
Senator Brown described the purpose of HOPA as ``making the law
clearer and more workable for seniors * * * to protect seniors so that
they can, if they wish to, move to housing where they are protected in
their safety and their privacy.'' (Congressional Record, S. 18064).
Senate Report #104-172 describes the purpose as a ``return to the
original intent of the Fair Housing Act exemption Congress created in
1988. HOPA is designed to make it easier for a housing community of
older persons to determine whether they qualify for the Fair Housing
Act exemption''. While House Report 104-91 states ``legislation is
necessary to establish a workable and fair exemption to protect senior
citizens who wish to live in retirement community''. In short, HOPA was
passed in order to protect senior housing.
HUD published a proposed rule for comment on January 14, 1997, at
62 FR 2000, and received approximately 130 comments on the proposed
rule. The comments were evenly split between comments which expressed
the belief that the regulation went too far in allowing the creation or
continuation of senior housing and those which generally supported the
rule but felt that it should have done more to stabilize the conditions
at senior housing communities or which objected to isolated provisions.
Several of the specific points raised will be addressed later in the
preamble and have resulted in changes and refinements to the proposed
regulation. As a general response, some of the comments from each side
are based upon premises with which HUD does not agree. In addition,
Congress did not state that HOPA should be retroactively applied.
Therefore, a matter involving a claim of alleged discrimination
occurring before December 28, 1995 will be covered by those laws and
regulations in effect at the time of the claimed violation. Claims of
alleged discrimination occurring after December 28, 1995, but before
the effective date of this regulation will be analyzed using HOPA and
its legislative history.
Those who maintain that HUD's interpretation of the exemption
should be narrowed ignore the history of the senior housing exemption
and HOPA. Congress made explicit findings that HOPA was necessary
because of the narrow construction afforded the senior housing
exemption in the past. It would be contrary to the intent of the HOPA
to abolish the ``significant facilities and services'' requirement that
hindered senior housing only to construct new impediments by strictly
construing the remaining requirements. At the same time, Congress
provided no indication that it intended to change the usual standards
applicable in judicial constructions of exemptions, and, thus, HUD
believes that, as with any exemption to the Fair Housing Act, the
burden will be on the housing provider to prove that it meets the
requirements set forth in this regulation in order to qualify for the
exemption.
Others who believed that HUD should go further in specifying
exactly what must be done by each facility and community fail to take
into full account the limited nature of the exemption provided under
the law. The Fair Housing Act and its senior exemptions, as amended by
HOPA, do not provide standards for the proper operation of a senior
community; they are designed only to advise communities and facilities
what will not violate the familial status provisions of the Act. Most
aspects of living in a senior community are governed by private
contractual agreements between senior housing developers and
individuals who purchased or rented the dwelling. Other aspects may be
governed by state or local ordinances, particularly regarding mobile
and manufactured homes. These private agreements and local laws, for
the most part, are left undisturbed by HUD's interpretation of HOPA.
HUD has also taken into consideration the broader historical
aspects of the senior housing issue. Until the advent of the familial
status protection established in the Fair Housing Amendments Act of
1988, the senior housing industry was a well-established, accepted
component of housing options for seniors. With no federal law directly
applicable, the industry developed in a variety of configurations and
circumstances. Age restrictions in individual communities started at
various ages--age 40, age 45, age 50 and so forth. Many communities
defined themselves as ``adult'' communities, but in operation served
seniors. Many senior communities served mature residents who are
active, participating members of their communities. State and local
law, local custom, and various provisions of covenants and restrictions
affected how rules for occupancy were established or changed, against
whom those rules could be enforced, the senior community's interplay
with state and local land use and anti-discrimination statutes, and
other practical day-to-day issues of senior housing. Against the
backdrop of the nearly infinite number of possible scenarios, HUD and
courts attempted to enforce the 1988 provisions of the exemptions.
Congress has determined that those efforts did not achieve the desired
results, and amended the Act. The rules that are included here in final
form have attempted to the address the issue in the broadest possible
terms to account for the large variety of senior communities while
being sufficiently detailed to provide clear guidance on the
requirements of the senior housing exemption, without dictating results
which may be inconsistent with local practice or deny flexibility in a
variety of circumstances.
Opposition to the proposed rule came largely from Fair Housing
advocacy groups and some housing industry groups. The comments of the
Northern California Fair Housing Coalition (NCFHC), a coalition of 18
fair housing groups, is a representative example of the issues raised
by these groups. NCFHC urges that the rule be withdrawn or
significantly altered based on a strict interpretation of the exemption
which HUD believes is contrary to the clear Congressional intent.
Specifically, NCHFC considers Sec. 100.305(e)(5), the so called
``transition provision,'' to be without legal authority and bad public
policy because, they assert, it would allow communities with

[[Page 16326]]

no senior residents to declare themselves housing for persons who are
55 years of age or older housing and discriminate against families with
children until they reach the 80% senior occupancy minimum.
A transition provision was first adopted in the August 18, 1995
final rule which was implemented prior to the passage of HOPA, but the
entire final rule was withdrawn in April 1996 after Congress passed
HOPA. The intent of the original transition provision was to provide a
mechanism to return to senior status for those former senior
communities who had abandoned, or did not achieve, senior status for
fear of law suits spawned by the pre-HOPA interpretations of the
exemption, especially the requirement that significant facilities and
services be provided, or for other reasons which Congress found were
contrary to the original intent of the exemption. As it has done in the
past, HUD is promulgating a transition provision under the authority of
42 U.S.C. 3607. As HUD noted in its comments to the previous final
rule, published on August 18, 1995:

The Act provides that a property ``shall not fail to meet the
requirements for housing for older persons by reason of * * * (B)
unoccupied units * * * '' 42 U.S.C. 3607. HUD believes it is
justified in interpreting the Act to allow a community which,
although it does not currently meet the 80 percent occupancy
requirement, to reserve all unoccupied units for occupancy by a
person 55 years of age or older. This may be the only way for a
community which believed that it was ineligible for ``housing for
older persons'' status, and which has therefore permitted occupancy
by families, to qualify for the exemption.

HUD is concerned, however, that an overly broad transition
provision may allow qualification for communities beyond those which
temporarily were unable to qualify for the exemption because of the
significant facilities and services provision or other interpretations
of the exemption, and which would otherwise have been eligible for the
exemption. For that reason, HUD has retained the transition provision,
but only for a period of one year from the date on which this
regulation becomes final, to allow communities which wish to qualify
for the 55-and-older exemption to qualify. At the end of the one year
period, the transition period will expire. HUD believes that this is a
more balanced approach that achieves a common sense solution to a
problem with equities on both sides. This represents the most
significant change in the rule. The one year limitation period will
require that those communities seeking to meet the 80% requirement have
at least 80% of their occupied units occupied by at least one person
who is 55 years of age or older by the expiration of the period in
order to qualify for the exemption. Vacant units reserved for occupancy
by persons who are 55 of age or older may not be counted in achieving
this standard. The transition provision may not be facilitated by
evicting or terminating the leases of resident households with minor
children.
The transition provision will expire at the end of one year from
the effective date of this regulation. A community or facility which
attempts to meet the exemption during the transition period,
unsuccessfully, must cease reserving vacant units for persons who are
55 years of age or older at the end of that period. Even if a facility
or community fails to meet the exemption during this transition period,
it will not be liable for discrimination on the basis of familial
status resulting from actions taken during the one year period if it
complies with all of the transition requirements during that time.
The NCFHC further objects to Sec. 100.305(c)(2) which references
``temporarily vacant'' dwellings. This provision is in response to the
situation where individuals move into ``senior parks'' as summer or
winter homes while others in the community remain year round. NCFHC
argues that only ``primary residences'' should be covered. There is no
support in the Congressional history or in HOPA for this
interpretation. HUD has held that a ``dwelling'' under the Act can
cover summer homes or even timeshare units. There is no reason to make
a distinction for senior housing. A unit which is occupied, even if
temporarily vacant while its residents are absent seasonally, on
vacation, or hospitalized, for example, is still occupied by that
resident. If, on the other hand, a unit is leased by its owners during
their absence, its current occupants, not its owners, are considered
for purposes of the exemption.
The fair housing advocates and several attorneys further objected
to Sec. 100.306(c) which addresses the effect of language in housing
documents on the intent requirement. HUD has consistently held that
intent is established by the totality of the facts. HUD is also aware
that prior to the adoption of protection for families with children in
the Fair Housing Amendments Act, housing communities and facilities had
established senior housing at an age other than 55 with a prohibition
against amending the covenants for a period of 25 years or more. It
would be unjust to deny such housing qualification for the exemption
when it meets the intent requirement in all other ways as well as
meeting the other requirements for the exemption and has done what it
can to eliminate language inconsistent with the exemption for housing
for persons 55 years of age or older. HUD notes, however, that in
circumstances where the community holds itself out as ``adult'' and its
legal documents describe occupancy in terms which are not consistent
with the 55-and-older exemption and no action has been taken to attempt
to change the applicable documents, the requisite intent requirement is
not met.
Other commenters have interpreted this provision as sanctioning
senior housing under federal law when state and local law prohibits or
restricts the establishment of senior housing in the particular
circumstances of that community. HUD has always allowed state or local
laws which impose requirements in addition to, but not inconsistent
with, those in the Act to apply. Moreover, to the extent that state or
local law interpretations require additional or different standards,
the Act's provisions must still be met to qualify for the exemption.
HUD urges senior communities to consult state or local units of
government to ensure that the housing community is also in compliance
with all applicable state and local requirements governing senior
housing.
Several commenters addressed specific actions of communities
purporting to be senior housing. These include such matters as
requirements that occupants join a homeowners association (HOA) or
whether a community must allow an under-aged heir to reside in the
community or the grandchild of a resident. None of these matters are
directly affected by the rule. These types of issues are governed by
private contractual agreements and local laws and practice. If there is
no independent law, deed restriction or other legally enforceable
requirement that an individual join a HOA, it is not required by HOPA.
Additionally, although HOPA would allow under-aged heirs, or minors
under the age of 18 years of age to reside in, or visit, housing for
persons who are 55 years of age or older, it does not require it. HUD
philosophically supports a compassionate community which has provisions
allowing some flexibility where the exemption would not be destroyed by
that flexibility, but there is no direct legal authority under the Act
to require it.

[[Page 16327]]

There continues to be confusion concerning 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, 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.
The final regulation retains the provision that a unit occupied by
a person or persons as a reasonable accommodation to the disability of
an occupant need not be counted in meeting the 80% requirements. This
provision ensures that a community or facility seeking to authorize the
reasonable accommodation for a resident who, because of a disability,
requires an attendant, including family members under the age of 18,
residing in a unit in order for that person to benefit from the housing
will not have its exemption adversely affected by permitting the
accommodation. The authority for this provision arises under the Act's
requirement that reasonable accommodations be provided to persons with
disabilities.
Although occupancy by a person under the age of 55 who inherits a
unit or a surviving spouse who is younger than 55 years of age are the
original examples cited by Congress in justifying the original 80/20
split, HUD does not consider these to be the only appropriate uses of
the flexibility provided by the up to 20% allowed by the exemption, nor
are protections for those groups required. HUD believes that the
appropriate use of the 20%, if any, is at the discretion of the
community or facility and does not intend to impose more specific
requirements in this area. For example, a community could allow some
percentage of its units, up to 20%, to be made available to persons
over the age of 50, and, as long as the overall intent to be senior
housing remained clear, HUD would not have an objection. However, the
remaining portion of units not counted for purposes of meeting the 80%
requirement may not be segregated within a community or facility.
Some commenters offered opinions concerning the proper nomenclature
for senior communities and the consequences of using the ``wrong''
term. HUD believes that the best practice is to refer to such housing
as ``Senior Housing'' or ``A 55 and older community'' or ``retirement
community,'' and discourages the use of the terms ``adult housing'' or
similar language. While use of adult housing or similar phrases,
standing alone, do not destroy the intent requirement of HOPA, they
send a clear message which is inconsistent with the intent to be
housing for older persons. If a community or facility has clearly shown
its intent in other ways, and meets the 80% requirement, then the
intent requirement has been met even if the phrase ``adult'' or similar
terminology is occasionally used. However, a community which describes
itself as ``adult'' leaves itself vulnerable to complaints about its
eligibility for the exemption, which could result in an investigation
or litigation to determine whether the community in fact qualifies for
the exemption.
Other questions on the intent requirement concerned whether HUD
intended to require that all of the items in Sec. 100.306 be provided
and whether the examples of compliance with the intent requirement were
mandatory. HUD does not intend to impose any rigid requirements on
indicating intent. Section 100.306 only speaks to relevant factors to
be considered and the examples simply illustrate what could satisfy the
requirement. Intent is judged based on the common understanding of the
word and whether the community or facility has established through
various means whether they intend to operate housing for persons who
are 55 years of age or older.
Other commenters objected to the inclusion of a ``municipally zoned
area'' as a possible type of housing for persons who are 55 years of
age or older, while others questioned the use of the terminology of
``mobile home park'' instead of ``manufactured housing''. When former
Assistant Secretary Roberta Achtenberg conducted public hearings on the
``55 and over'' rule, HUD learned that there are a large variety of
senior housing communities, organized and administered in various ways.
HUD attempted to define the possibilities as broadly as possible to
include any type of housing which could qualify for the exemption.
On the issue of age verification, commenters had several diverse
suggestions. Several commenters urged that only the individual resident
should be able to attest to his or her age and that anyone not
cooperating with the survey should be considered to be not 55 years or
older. It is HUD's position that the test is whether 80% of the
occupied units are, in fact, occupied by persons 55 years or older.
This need only be documented through reliable survey, census or
affidavit, or other documentation, a copy of which should be retained
for recordkeeping purposes, and which confirms that the 80% threshold
is being met. A self certification of his or her age by an individual
will be adequate to meet this standard. An affidavit from someone who
knows the age of the occupant(s) and states his/her basis for the
knowledge is sufficiently reliable to satisfy the statute. To hold
otherwise would effectively allow 21% of a senior community to destroy
the exemption by not cooperating with verification procedures.
Other comments concerning verification were that the use of
immigration documents should be removed from the list of possible
sources of age verification lest it encourage discrimination against
legal immigrants. The option remains in the rule since it is only one
way of verifying age. HUD does not intend to require any particular
documentation be provided as a condition of occupancy, including
immigration documentation. If any individual chooses to verify by
providing a drivers license or affidavit instead of an immigration
document, the verification requirement will be satisfied. A summary of
the information gathered in support of the occupancy verification
should be retained for confirmation purposes. Copies of supporting
information gathered in support of the occupancy verification may be
retained in a separate file with limited access, created for the sole
purpose of complying with HOPA, and not in general or resident files
that may be widely accessible to employees or other residents. The
segregated documents may be considered confidential and not generally
available for public inspection. HUD, state or local fair housing
enforcement agencies, or the Department of Justice may review this
documentation during the course of an investigation.
Other commenters questioned the reference to a ``census'' as a
source of verification, noting that the census does not specify
individual names but

[[Page 16328]]

instead deals with ``census tracts'' and is often outdated. This is a
misunderstanding of HUD's view. HUD was not referring to the United
States Decennial Census for verification of occupancy. The reference is
to household censuses which are conducted by many cities and towns. The
language has been clarified.
Some commenters objected to the ``re-survey'' of the park every two
years as being unduly burdensome, especially if the list is actively
updated on an on-going basis. While HUD is sympathetic to those well-
managed communities which actively update lists of residents, it does
not feel that such communities would be unduly burdened by the update
since the information required will be readily available in the files.
HUD's experience in this area gives it reason to believe that if
surveys are not required to be updated periodically the quality of the
recordkeeping will deteriorate and create the opportunity for the
excessive litigation Congress sought to prevent. The re-survey does not
require that all supporting documents be collected again--only that the
community confirm that those persons counted as occupying dwellings for
purposes of meeting the 80% requirement are, in fact, still in
occupancy.
There were objections to making public information contained in an
age survey for fear that confidential information may be obtained by
someone attempting to prey on seniors. HUD believes that this is a
misinterpretation of the requirement. Only the overall survey summary
is required to be available for review, not the supporting
documentation. The word ``summary'' has been added to this section.
Some commenters felt that any affidavit should be signed under the
penalty of perjury to ensure the integrity of the process. Communities
which are concerned about misrepresentation of the age of occupants are
free to require that affidavits from occupants about the ages of
persons in their households be signed under the penalty of perjury,
just as they are free, consistent with state or local law, to require
that applications, leases, and other admission documents be signed
under oath, or under penalty of perjury. Statements from third party
individuals who have personal knowledge of the age of the occupants and
setting forth the basis for such knowledge may be used when occupants
decline to provide information verifying age, but such statements must
be made under penalty of perjury.
There were three comments concerning the ``good faith reliance''
exemption from monetary damages. The first questioned whether the
exemption covered just housing for persons who are 55 years of age or
older or all senior housing exemptions. A review of the language of
HOPA indicates the language is applicable whenever the housing for
older persons exemption may be claimed. The language has been adjusted
accordingly. The second comment concerned whether the term ``person''
covered only ``natural persons'' or whether it included business and
corporate entities. HUD believes Congress intended the ``good faith
reliance defense'' to be applicable only to natural persons. The
legislative history of the provision indicates that Congress intended
to protect individual persons, such as individual members of boards of
governing homeowners associations and real estate agents relying on
information provided to them by operators of senior communities, in
enacting this provision. House Report 104-91, at 10, describes this
portion of the amendment as being designed to allow a person engaged in
the business of residential real estate to show ``good faith reliance''
unless the person has actual knowledge that a facility or community is
not eligible for the exemption and describes individual real estate
agents as requiring protection in this area. This language indicates
that it is natural persons which Congress wished to protect from
damages awards in these circumstances.
To the extent that this interpretation may cause concern for
corporate publishers which may accept a notice describing a facility or
community as senior housing based on the representations of others and
without personal knowledge of the actual qualifications for
eligibility, HUD has already interpreted section 804(c) of the Act to
exclude from liability those entities which publish advertisements
regarding senior housing in good faith reliance on the assertions of
others. To the extent that there is further publication based on a
natural person's good faith reliance on a certification of eligibility
for an exemption, HUD foresees no grounds for further liability. In
other words, where the source of the information is a natural person
who has the written certification described in the final regulation and
further publication is based on that information, in the absence of
actual knowledge that a particular community or facility is not
eligible for the exemption, there is no liability for that publication.
The third issue identified by commenters deals with whether a claim
of ``good faith'' requires actual knowledge that the community had
certified in writing that it was housing for persons who are 55 years
of age or older. A review of the language of the Committee report
indicates that the eligibility for the claim of ``good faith'' relies
on the fact that the facility or community ``has certified to that
person, in writing and on oath or affirmation, that it complies with
the requirements'' for the exemption. (House Report 104-91 at 10)
Therefore, actual knowledge of the certification is required. Other: It
has become clear that there is confusion about the extent to which the
provisions of the Fair Housing Act relating to the housing for older
persons exemptions affect statutory eligibility requirements for
participation in federally funded housing programs. Neither HOPA nor
the Act change the definition of ``elderly family'' which mandates that
a family include the situation where the head, spouse or sole member is
age 62 or older. Neither HOPA nor the Act permit a HUD-funded public
housing provider to designate a project as being for the elderly
without HUD review and approval, even if the project would meet the
housing for older persons exemption under the Act. Similarly, HUD-
funded housing which is designated for the elderly may not admit
households which are not statutorily eligible for the housing (such as
limiting admissions to those who are 55 years of age or older rather
than the near elderly). Finally, no public housing development funded
by HUD may exclude families with children, even if at least 80% of the
units are occupied by at least one person who is 55 years of age or
older.

II. Findings and Certifications

Executive Order 12866

This rule was reviewed by the Office of Management and Budget (OMB)
under Executive Order 12866 on Regulatory Planning and Review, issued
by the President on September 30, 1993. OMB determined that this final
rule is a ``significant regulatory action,'' as defined in section 3(f)
of the Order (although not economically significant, as provided in
section 3(f)(1) of the Order). Any changes made in the rule subsequent
to its submission to OMB are identified in the docket file, which is
available for public inspection as provided under the section of this
preamble entitled ADDRESS.

Environmental Impact

In accordance with 24 CFR 50.19(c)(3) of the Department's
regulations published in a final rule on September 27, 1996 (61 FR
50914), the policy set

[[Page 16329]]

forth in this final rule is categorically excluded from the
requirements of the National Environmental Policy Act of 1969 (42
U.S.C. 4321-4347) and the authorities cited in 24 CFR 50.4.

Executive Order 12612, Federalism

The General Counsel, as the Designated Official, under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this final rule will not have substantial direct effects
on States or their political subdivisions, or the relationship between
the Federal government and the States, or on the distribution of power
and responsibilities among the various levels of government. This rule
implements the requirements of HOPA by revising the provisions for
``55-or-older'' housing found at 24 CFR part 100, subpart E. It effects
no changes in the current relationships among the Federal government,
the States and their political subdivisions in connection with HUD
programs.

Regulatory Flexibility Act

The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this final rule, and in so
doing certifies that this final rule will not have a significant
economic impact on a substantial number of small entities. This rule
updates HUD's regulations implementing the ``housing for older
persons'' exemption to the Fair Housing Act. Specifically, the rule
implements the statutory amendments made by HOPA. These revisions
provide housing facilities and communities with a better understanding
of what housing qualifies for the ``55-or-older'' exemption to the Fair
Housing Act's prohibitions against discrimination on the basis of
familial status. The final rule will not have any meaningful impact on
small entities.

List of Subjects in 24 CFR part 100

Aged, Fair housing, Individuals with disabilities, Mortgages,
Reporting and recordkeeping requirements.

Accordingly, 24 CFR part 100 is amended as follows:

PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT

1. The authority citation for 24 CFR part 100 continues to read as
follows:

Authority: 42 U.S.C. 3535(d), 3600-3619.

2. Subpart E is amended by revising Sec. 100.304 and by adding
Secs. 100.305, 100.306, 100.307, and 100.308, to read as follows:

Subpart E--Housing for Older Persons

* * * * *

Sec. 100.304 Housing for persons who are 55 years of age of older.

(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
(2) The alleged violation occurred on or after December 28, 1995
and the housing community or facility complies with:
(i) Section 807(b)(2)(C) (42 U.S.C. 3607(b)) of the Fair Housing
Act as amended; and
(ii) 24 CFR 100.305, 100.306, and 100.307.
(b) For purposes of this subpart, housing facility or community
means any dwelling or group of dwelling units governed by a common set
of rules, regulations or restrictions. A portion or portions of a
single building shall not constitute a housing facility or community.
Examples of a housing facility or community include, but are not
limited to:
(1) A condominium association;
(2) A cooperative;
(3) A property governed by a homeowners' or resident association;
(4) A municipally zoned area;
(5) A leased property under common private ownership;
(6) A mobile home park; and
(7) A manufactured housing community.
(c) For purposes of this subpart, older person means a person 55
years of age or older.

Sec. 100.305 80 percent occupancy.

(a) In order for a housing facility or community to qualify as
housing for older persons under Sec. 100.304, at least 80 percent of
its occupied units must be occupied by at least one person 55 years of
age or older.
(b) For purposes of this subpart, occupied unit means:
(1) A dwelling unit that is actually occupied by one or more
persons on the date that the exemption is claimed; or
(2) A temporarily vacant unit, if the primary occupant has resided
in the unit during the past year and intends to return on a periodic
basis.
(c) For purposes of this subpart, occupied by at least one person
55 years of age or older means that on the date the exemption for
housing designed for persons who are 55 years of age or older is
claimed:
(1) At least one occupant of the dwelling unit is 55 years of age
or older; or
(2) If the dwelling unit is temporarily vacant, at least one of the
occupants immediately prior to the date on which the unit was
temporarily vacated was 55 years of age or older.
(d) Newly constructed housing for first occupancy after March 12,
1989 need not comply with the requirements of this section until at
least 25 percent of the units are occupied. For purposes of this
section, newly constructed housing includes a facility or community
that has been wholly unoccupied for at least 90 days prior to re-
occupancy due to renovation or rehabilitation.
(e) Housing satisfies the requirements of this section even though:
(1) On September 13, 1988, under 80 percent of the occupied units
in the housing facility or community were occupied by at least one
person 55 years of age or older, provided that at least 80 percent of
the units occupied by new occupants after September 13, 1988 are
occupied by at least one person 55 years of age or older.
(2) There are unoccupied units, provided that at least 80 percent
of the occupied units are occupied by at least one person 55 years of
age or older.
(3) There are units occupied by employees of the housing facility
or community (and family members residing in the same unit) who are
under 55 years of age, provided the employees perform substantial
duties related to the management or maintenance of the facility or
community.
(4) There are units occupied by persons who are necessary to
provide a reasonable accommodation to disabled residents as required by
Sec. 100.204 and who are under the age of 55.
(5) For a period expiring one year from the effective date of this
final regulation, there are insufficient units occupied by at least one
person 55 years of age or older, but the housing facility or community,
at the time the exemption is asserted:
(i) Has reserved all unoccupied units for occupancy by at least one
person 55 years of age or older until at least 80 percent of the units
are occupied by at least one person who is 55 years of age or older;
and
(ii) Meets the requirements of Secs. 100.304, 100.306, and 100.307.
(f) For purposes of the transition provision described in
Sec. 100.305(e)(5), a housing facility or community may not evict,
refuse to renew leases, or

[[Page 16330]]

otherwise penalize families with children who reside in the facility or
community in order to achieve occupancy of at least 80 percent of the
occupied units by at least one person 55 years of age or older.
(g) Where application of the 80 percent rule results in a fraction
of a unit, that unit shall be considered to be included in the units
that must be occupied by at least one person 55 years of age or older.
(h) Each housing facility or community may determine the age
restriction, if any, for units that are not occupied by at least one
person 55 years of age or older, so long as the housing facility or
community complies with the provisions of Sec. 100.306.

Sec. 100.306 Intent to operate as housing designed for persons who are
55 years of age or older.

(a) In order for a housing facility or community to qualify as
housing designed for persons who are 55 years of age or older, it must
publish and adhere to policies and procedures that demonstrate its
intent to operate as housing for persons 55 years of age or older. The
following factors, among others, are considered relevant in determining
whether the housing facility or community has complied with this
requirement:
(1) The manner in which the housing facility or community is
described to prospective residents;
(2) Any advertising designed to attract prospective residents;
(3) Lease provisions;
(4) Written rules, regulations, covenants, deed or other
restrictions;
(5) The maintenance and consistent application of relevant
procedures;
(6) Actual practices of the housing facility or community; and
(7) Public posting in common areas of statements describing the
facility or community as housing for persons 55 years of age or older.
(b) Phrases such as ``adult living'', ``adult community'', or
similar statements in any written advertisement or prospectus are not
consistent with the intent that the housing facility or community
intends to operate as housing for persons 55 years of age or older.
(c) If there is language in deed or other community or facility
documents which is inconsistent with the intent to provide housing for
persons who are 55 years of age or older housing, HUD shall consider
documented evidence of a good faith attempt to remove such language in
determining whether the housing facility or community complies with the
requirements of this section in conjunction with other evidence of
intent.
(d) A housing facility or community may allow occupancy by families
with children as long as it meets the requirements of Secs. 100.305 and
100.306(a).

(Approved by the Office of Management and Budget under control
number 2529-0046)

Sec. 100.307 Verification of occupancy.

(a) In order for a housing facility or community to qualify as
housing for persons 55 years of age or older, it must be able to
produce, in response to a complaint filed under this title,
verification of compliance with Sec. 100.305 through reliable surveys
and affidavits.
(b) A facility or community shall, within 180 days of the effective
date of this rule, develop procedures for routinely determining the
occupancy of each unit, including the identification of whether at
least one occupant of each unit is 55 years of age or older. Such
procedures may be part of a normal leasing or purchasing arrangement.
(c) The procedures described in paragraph (b) of this section must
provide for regular updates, through surveys or other means, of the
initial information supplied by the occupants of the housing facility
or community. Such updates must take place at least once every two
years. A survey may include information regarding whether any units are
occupied by persons described in paragraphs (e)(1), (e)(3), and (e)(4)
of Sec. 100.305.
(d) Any of the following documents are considered reliable
documentation of the age of the occupants of the housing facility or
community:
(1) Driver's license;
(2) Birth certificate;
(3) Passport;
(4) Immigration card;
(5) Military identification;
(6) Any other state, local, national, or international official
documents containing a birth date of comparable reliability; or
(7) A certification in a lease, application, affidavit, or other
document signed by any member of the household age 18 or older
asserting that at least one person in the unit is 55 years of age or
older.
(e) A facility or community shall consider any one of the forms of
verification identified above as adequate for verification of age,
provided that it contains specific information about current age or
date of birth.
(f) The housing facility or community must establish and maintain
appropriate policies to require that occupants comply with the age
verification procedures required by this section.
(g) If the occupants of a particular dwelling unit refuse to comply
with the age verification procedures, the housing facility or community
may, if it has sufficient evidence, consider the unit to be occupied by
at least one person 55 years of age or older. Such evidence may
include:
(1) Government records or documents, such as a local household
census;
(2) Prior forms or applications; or
(3) A statement from an individual who has personal knowledge of
the age of the occupants. The individual's statement must set forth the
basis for such knowledge and be signed under the penalty of perjury.
(h) Surveys and verification procedures which comply with the
requirements of this section shall be admissible in administrative and
judicial proceedings for the purpose of verifying occupancy.
(i) A summary of occupancy surveys shall be available for
inspection upon reasonable notice and request by any person.

(Approved by the Office of Management and Budget under control
number 2529-0046)

Sec. 100.308 Good faith defense against civil money damages.

(a) A person shall not be held personally liable for monetary
damages for discriminating on the basis of familial status, if the
person acted with the good faith belief that the housing facility or
community qualified for a housing for older persons exemption under
this subpart.
(b)(1) A person claiming the good faith belief defense must have
actual knowledge that the housing facility or community has, through an
authorized representative, asserted in writing that it qualifies for a
housing for older persons exemption.
(2) Before the date on which the discrimination is claimed to have
occurred, a community or facility, through its authorized
representatives, must certify, in writing and under oath or
affirmation, to the person subsequently claiming the defense that it
complies with the requirements for such an exemption as housing for
persons 55 years of age or older in order for such person to claim the
defense.
(3) For purposes of this section, an authorized representative of a
housing facility or community means the individual, committee,
management company, owner, or other entity having the responsibility
for adherence to the requirements established by this subpart.

[[Page 16331]]

(4) For purposes of this section, a person means a natural person.
(5) A person shall not be entitled to the good faith defense if the
person has actual knowledge that the housing facility or community does
not, or will not, qualify as housing for persons 55 years of age or
older. Such a person will be ineligible for the good faith defense
regardless of whether the person received the written assurance
described in paragraph (b) of this section.

Dated: March 25, 1999.
Eva M. Plaza,
Assistant Secretary for Fair Housing and Equal Opportunity.

Note: This Appendix will not be Codified in Title 24 of the CFR.

Appendix

Examples of Applications of HUD'S Regulations Governing the
Exemption for Housing for Persons 55 Years of Age or Older to the
Fair Housing Act

Sections
1. Purpose.
2. 80 percent occupancy.
3. Intent to operate as housing for persons who are 55 years of age
or older.
4. Verification of occupancy.
5. Future revisions to this appendix.

1. Purpose.

The Fair Housing Act (Title VIII of the Civil Rights Act of
1968, as amended, 42 U.S.C. 3601-3619) (the Act) exempts ``housing
for older persons'' from the prohibitions against discrimination
because of familial status. Section 807(b)(2)(C) of the Act exempts
housing intended and operated for occupancy by persons 55 years of
age or older that satisfies certain criteria. HUD has implemented
the ``housing for older persons'' exemption at 24 CFR part 100,
subpart E. Specifically, Secs. 100.304, 100.305, 100.306, and
100.307 set forth the requirements for housing seeking to qualify
for the exemption. The purpose of this appendix is to provide
guidance to housing facilities or communities in applying these HUD
requirements.

2. 80 Percent Occupancy.

Section 100.305 provides that in order for a housing facility or
community to qualify for the exemption, at least 80 percent of its
occupied units must be occupied by at least one person 55 years of
age or older. This occupancy requirement must be met at the time of
any alleged violation of the Act. Paragraph (f) of Sec. 100.305
states that where application of the 80 percent rule results in a
fraction of a unit, that unit shall be considered to be included in
the units that must be occupied by at least one person 55 years of
age or older.
Example: A community or facility contains 63 occupied units.
Eighty percent of 63 units equals 50.4. Under Sec. 100.305(d), 51
units would require occupancy by at least one person 55 years of age
or older to qualify as 55 and older housing.
Section 100.305 also sets forth the other requirements a housing
facility or community must follow in calculating occupancy. The
following examples illustrate these requirements:

Example 1:

Buena Vista is a condominium association of 120 units. On
September 13, 1988, twenty (20) of the occupied units are not
occupied by at least one person 55 years of age or older.
On April 1, 1998, Buena Vista declares itself to be housing for
persons 55 years of age or older. On that date:
(1) The twenty (20) persons described above are still residing
at Buena Vista;
(2) Ten (10) units of the total 120 units are unoccupied;
(3) One (1) of the units is occupied by the association's
maintenance supervisor; and
(4) Two (2) units are occupied only by live-in health aides who
provide reasonable accommodations to residents with disabilities and
who are under the age of 55.
How many of the occupied units must be occupied by at least one
person 55 years of age or older in order for Buena Vista to qualify
as 55-or-older housing?
Under Sec. 100.305(e), Buena Vista would calculate its
compliance with the 80 percent occupancy requirement by subtracting
the following units from the total 120 units:
(1) The 20 units not occupied by at least one person 55 years of
age or older on September 13, 1988 (See Sec. 100.305(e)(1));
(2) The ten (10) unoccupied units (See Sec. 100.305(e)(2));
(3) The one (1) unit occupied by the maintenance person (See
Sec. 100.305(e)(3)); and
(4) The two (2) units occupied by the health aides (See 42
U.S.C. 3607 (b)(3)(A) and 42 Sec. 100.305(e)(4)).
Subtracting these 33 units from the total of 120 units leaves 87
units. At least 80 percent of these 87 units must be occupied by at
least one person 55 years of age or older. Eighty percent of 87
equals 69.6. Due to Sec. 100.305(d), 70 units must be occupied by at
least one person 55 years of age or older. This example assumes that
the community also meets the requirements of Secs. 100.306 and
100.307.

Example 2:

Topaz House is a cooperative of 100 units. On January 20, 1998,
Topaz House announces its intent to be 55-or-older housing and
publishes policies and procedures sufficient to satisfy
Sec. 100.306. On that date, of the 100 total units:
(1) Sixty (60) of the occupied units are occupied by at least
one person 55 years of age or older;
(2) Thirty (30) of the occupied units do not have occupants 55
years of age or older; and
(3) Ten (10) units are unoccupied.
Since 60 out of the 90 occupied units are occupied by at least
one person 55 years of age or older, the Topaz House only has 67
percent of its occupied units occupied by at least one person 55
years of age or older.
Under Sec. 100.305(e)(5), Topaz House may still qualify for the
55-or-older exemption if, during a period which is one year from the
effective date of this regulation, it:
(1) Reserves all unoccupied units for occupancy by at least one
person 55 years of age or older until at least 80 percent of the
units are occupied by at least one person who is 55 years of age or
older; and
(2) Meets the requirements of Secs. 100.304, 100.305, 100.306,
and 100.307 and
(3) Within the one year period achieves occupancy of at least
80% of its occupied units by at least one person who is 55 years of
age or older.
There is no requirement that Topaz House take any action
concerning the residents under 55 years of age who are occupying
units on the date the building declares its intent to be 55-or-older
housing. Topaz may not evict, or terminate the leases of households
containing children under the age of 18, in order to qualify for the
exemption.

Example 3:

Snowbird City is a mobile home community in Texas with 100
units. Snowbird City complies with all other requirements of 55-or-
older housing, but is uncertain of its compliance with the 80
percent occupancy rule.
Fifty out of the 100 units are occupied year round. Of these
fifty units, 12 units are not occupied by at least one person 55
years of age or older. Of the remaining 50 units, 5 are unoccupied
and offered for sale, and the remaining 45 are occupied by at least
one person 55 years of age or older each winter on a routine and
reoccurring basis.
If a complaint of familial status discrimination is filed in
December, the community meets the 80 percent occupancy requirement
because 83 out of the 95 occupied units (87 percent), are occupied
by at least one person 55 years of age or older. If the complaint is
filed in July, Snowbird City still meets the requirement. Under
Sec. 100.305(b), a temporarily vacant unit is considered occupied by
a person 55 years of age or older if:
(1) The primary occupant has resided in the unit during the past
year; and
(2) The occupant intends to return on a periodic basis.

Example 4:

The King Philip Senior Community is a newly renovated building
originally built in 1952. It has been vacant for over one year while
extensive renovations were completed. The building contains 200
units. The King Philip Senior Community is intended to be operated
as a 55-or-older community.
Under Sec. 100.305(d), newly constructed housing need not comply
with the 80 percent occupancy requirement until 25 percent of the
total units are occupied. For purposes of Sec. 100.305(d), newly
constructed housing includes housing that has been unoccupied for at
least 90 days due to renovation or rehabilitation. Accordingly, the
King Philip Senior Community need not comply with the 80 percent
occupancy requirement until 50 out of its 200 units (25 percent) are
occupied. Subsequent to occupancy of the 50th unit, however, the
building will have to satisfy the 80 percent occupancy rule in order
to qualify as 55-or-older housing.

[[Page 16332]]

3. Intent to operate as housing for persons who are 55 years of age or
older.

Section 100.306 provides that in order for a housing facility or
community to qualify as housing for persons 55 years of age or
older, it must publish and adhere to policies and procedures that
demonstrate its intent to operate as housing for persons 55 years of
age or older. Section 100.306 also details the factors HUD will
utilize to determine whether a housing facility or community has met
this intent requirement. The following are examples of housing
facilities and communities which satisfy the intent requirement
described in Sec. 100.306:

Example 1:

A mobile home park which takes the following actions satisfies
the intent requirement:
(1) Posts a sign indicating that the park is 55-or-older
housing;
(2) Includes lease provisions stating that the park intends to
operate as 55-or-older housing; and
(3) Has provided local realtors with copies of the lease
provisions.

Example 2:

An area zoned by a unit of local government as ``senior
housing'' satisfies the intent requirement if:
(1) Zoning maps containing the ``senior housing'' designation
are available to the public;
(2) Literature distributed by the area describes it as ``senior
housing'';
(3) The ``senior housing'' designation is recorded in accordance
with local property recording statutes; and
(4) Zoning requirements include the 55-or-older requirement or a
similar provision.

Example 3:

A condominium association satisfies the intent requirement if it
has:
(1) Adopted, through its rules and regulations, restrictions on
the occupancy of units consistent with HUD's regulations governing
55-or-older housing at 24 CFR part 100, subpart E;
(2) Has distributed copies of the rules to all occupants; and
(3) Has notified local realtors of the restrictions.
The following is an example of a housing facility which has
failed to satisfy the intent requirement described in Sec. 100.306:

Example 4:

A homeowners association has failed to meet the intent
requirement if it has Covenants, Conditions and Restrictions which
refer to an ``adult community,'' has posted a sign stating ``A 40
and over community'' and has restricted visiting children to a
maximum of two weeks, but contains no similar restriction for
visiting adults.

4. Verification of occupancy.

Section 100.307 provides that in order for a housing facility or
community to qualify as 55-or-older housing, it must be able to
produce, in response to a complaint alleging a violation of the Act,
verification of compliance with Sec. 100.305 through reliable
surveys and affidavits. Paragraph (d)(7) of Sec. 100.307 includes
self-certifications in a list of documents considered reliable
documentation of the age of occupants. The self-certification may be
included in a lease or other document, and must be signed by an
adult member of the household asserting that at least one person in
the unit is 55 years of age or older. The following examples provide
acceptable provisions to demonstrate a self-certification process:

Example 1:

All new leases, new purchase agreements, or new applications
contain a provision directly above the signatory line for lessees,
asserting that at least one occupant of the dwelling will be 55
years of age or older. In addition, the community surveys all
current residents for their occupancy status in compliance with the
55-or-older requirements.

Example 2: Sample certification

I, (name), am 18 years of age or older and a member of the
household that resides at (housing facility or community), (unit
number or designation). I hereby certify that I have personal
knowledge of the ages of the occupants of this household and that at
least one occupant is 55 years of age or older.
Paragraph (e) of Sec. 100.307 requires that the housing facility
or community establish appropriate policies to require that all
occupants comply with the age verification procedures. The following
examples illustrate acceptable policies:

Example 1:

A condominium association establishes a rule that the board of
directors must approve all new occupants. One criteria for approval
is that new occupants of each unit inform the condominium
association whether at least one person occupying the unit is 55
years of age or older.

Example 2:

A homeowners association amends its Covenants, Conditions and
Restrictions, and records them at the appropriate government
recording office. The amendments require applicants to state whether
at least one occupant is 55 years of age or older.

Example 3:

The owner of a mobile home park where the residents own the
coach but rent the land requires a statement of whether at least one
occupant is 55 years of age or older before any sublease or new
rental.

5. Future revisions to this appendix.

HUD may update or revise this appendix as necessary.

[FR Doc. 99-8167 Filed 4-1-99; 8:45 am]
BILLING CODE 4210-28-P