§ 100.300 Purpose.
The purpose of this subpart is to effectuate the exemption
in the Fair Housing Amendments Act of 1988 that relates to housing for older
persons.
§ 100.301 Exemption.
(a) The provisions regarding familial status in this part do
not apply to housing which satisfies the requirements of §1 00.302, 100.303 or
§100.304.
(b) Nothing in this part limits the applicability of any
reasonable local, State, or Federal restrictions regarding the maximum number
of occupants permitted to occupy a dwelling.
§ 100.302 State and
Federal elderly housing programs.
The provisions regarding familial status in this part shall
not apply to housing provided under any Federal or State program that the
Secretary determines is specifically designed and operated to assist elderly
persons, as defined in the State or Federal program.
§ 100.303 62 or over
housing.
(a) The provisions regarding familial status in this part
shall not apply to housing intended for, and solely occupied by, persons 62
years of age or older. Housing satisfies the requirements of this section even
though:
(1) There are persons residing
in such housing on September 13, 1988 who are under 62 years of age, provided
that all new occupants are persons 62 years of age or older;
(2) There are unoccupied
units, provided that such units are reserved for occupancy by persons 62 years
of age or over;
(3) There are units occupied
by employees of the housing (and family members residing in the same unit) who
are under 62 years of age provided they perform substantial duties directly
related to the management or maintenance of the housing.
(b) The following examples illustrate the application of
paragraph (a) of this section:
Example (1): John
and Mary apply for housing at the Vista Heights apartment complex which is an
elderly housing complex operated for persons 62 years of age or older. John is
62 years of age. Mary is 59 years of age. If Vista Heights wishes to retain its
“62 or over” exemption it must refuse to rent to John and Mary because Mary is
under 62 years of age. However, if Vista Heights does rent to John and Mary, it
might qualify for the “55 or over” exemption in §100.304.
Example (2): The
Blueberry Hill retirement community has 100 dwelling units. On September 13,
1988, 15 units were vacant and 35 units were occupied with at least one person
who is under 62 years of age. The remaining 50 units were occupied by persons
who were all 62 years of age or older. Blueberry Hill can qualify for the “62
or over” exemption as long as all units that were occupied after September 13,
1988 are occupied by persons who were 62 years of age or older. The people
under 62 in the 35 units previously described need not be required to leave for
Blueberry Hill to qualify for the ‘62 or over” exemption.
§ 100.304 Housing for
persons who are 55 years of age or 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.
[64 FR 16329, Apr. 2, 1999]
§ 100.305 80 percent
occupancy.
(a) In order for a housing facility or community to qualify
as housing for older persons under §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 §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 §1 00.304, 100.306, and 100.307.
(f) For purposes of the transition provision described in §1
00.305(e)(S), a housing facility or community may not evict, refuse to renew
leases, or 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 §100.306.
[64 FR 16329, Apr. 2, 1999]
§ 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 §100.305 and
100.306(a).
(Approved by the Office of Management
and Budget under control number 2529—0046)
[64 FR 16330, Apr. 2, 1999]
§ 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
§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 §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) Drivers 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)
[64 FR 16330, Apr. 2, 1999]
§ 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.
(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.
[64 FR 16330, Apr. 2, 1999]