[Federal Register Volume 62, Number 9 (Tuesday, January 14, 1997)]
[Proposed Rules]
[Pages 2000-2005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-840]
[[Page 1999]]
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Part IV
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 100
Implementation of the Housing for Older Persons Act of 1995; Proposed
Rule
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 /
Proposed Rules
[[Page 2000]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 100
[Docket No. FR-4094-P-01]
RIN 2529-AA80
Implementation of the Housing for Older Persons Act of 1995
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would implement the Housing for Older
Persons Act of 1995 (HOPA). HOPA amended the requirements for
qualification under the ``housing for older persons'' exemption
established by 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 proposes to update HUD's
regulations to reflect the changes made by HOPA.
DATES: Comments on this proposed rule and the information collection
requirements must be received on or before March 17, 1997.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Office of the General Counsel, Rules Docket
Clerk, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500. Communications should
refer to the above docket number and title and to the specific sections
in the regulation. Facsimile (FAX) comments are not acceptable. A copy
of each communication submitted will be available for public inspection
and copying during regular business hours at the above address. For
additional information concerning the information collection
requirements contained in this rule, please see the ``Findings and
Certifications'' section of this preamble. A copy of any comment
regarding the information collection requirements must be sent to:
Joseph F. Lackey, Jr., HUD Desk Officer, Office of Management and
Budget, New Executive Office Building, Room 10235, Washington, DC
20503.
FOR FURTHER INFORMATION CONTACT: Sara K. Pratt, Director, Office of
Investigations, Office of Fair Housing and Equal Opportunity, Room
5204, U.S. Department of Housing and Urban Development, 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
access this number via TTY by calling the toll-free Federal Information
Relay Service at 1-800-877-8399.
SUPPLEMENTARY INFORMATION:
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 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.
The Housing for Older Persons Act of 1995 (Pub. L. 104-76, approved
December 28, 1995) (HOPA) replaced the original parameters of the 55-
or-older exemption. Section 2 of HOPA redefined 55-or-older housing as
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 most substantial change made by HOPA was the elimination of the
``significant facilities and services'' requirement. Section
807(b)(2)(C) of the Act originally required that 55-or-older housing
provide ``significant facilities and services specifically designed to
meet the physical or social needs of older persons.'' HOPA also adds
the new requirement that the housing facility or community comply with
any HUD regulations on verification and occupancy.
In other respects, however, the new requirements are equivalent to
the former provisions. HOPA requires that a housing facility or
community seeking to claim the 55-or-older exemption show three
factors. Similar to original section 807(b)(2)(C) of the Act, HOPA
requires: (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
55-or-older exemption. The housing facility or community must also
comply with rules issued by HUD for the 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 persons who reasonably relied in good faith on the
application of the 55-or-older exemption, even when, in fact, the
housing facility or community did 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 Proposed Rule
On April 1, 1996 (61 FR 14378), HUD published a final rule
streamlining its regulations implementing the Act.\1\ The April 1, 1996
final rule, which was part of HUD's efforts to implement the
President's regulatory reform initiative, removed the obsolete
provisions describing the ``significant facilities and services''
requirement. The rule also made several other streamlining changes to
HUD's regulations at subpart E of 24 CFR part 100. However, because the
April 1, 1996 rule was published for effect without prior public
comment, HUD postponed making the more substantial changes necessary to
complete its implementation of HOPA. This rule proposes to make these
regulatory amendments.
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\1\ A subsequent technical correction was published on April 25,
1996 (61 FR 18248).
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This rule proposes to revise Sec. 100.304, which presents an
overview of the 55-or-older exemption, to more closely track the HOPA
requirements. The rule also proposes to create a new Sec. 100.305,
which would update the 80 percent occupancy requirements. A new
Sec. 100.306 would describe how a facility or community may establish
its intent to operate as 55-or-older housing. New Sec. 100.307 would
set forth the necessary procedures for verification of the 80 percent
occupancy requirements. Finally, a new Sec. 100.308 would implement 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 proposed Sec. 100.306 would list several
factors which HUD considers relevant in determining whether the housing
facility or community intends to operate as housing for older persons.
However, 24 CFR 100.306(b) would state that the use of phrases such as
``adult living'', ``adult community'', ``40 and over community'', or
similar statements in any written advertisement or prospectus do not
create a presumption that the housing community satisfies HOPA's intent
requirement. The use of such phrases does not show that the facility or
community truly intends to operate as housing for older persons and are
inconsistent with that intent. HUD, in order to make a valid assessment
of intent, will consider the other measures taken by the facility or
community to demonstrate the intent required by HOPA. Moreover, the
housing facility or community may not evict 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 proposes to provide guidance to assist housing facilities
and communities in applying the requirements of this proposed rule.
These examples are contained in an appendix to this proposed rule. The
appendix would not be codified in title 24 of the CFR. HUD may update
or revise the appendix as necessary.
II. Findings and Certifications
Public Reporting Burden
(a) The information collection requirements contained in
Secs. 100.306 and 100.307 of this proposed 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). 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.
(b) In accordance with 5 CFR 1320.5(a)(1)(iv), the Department is
setting forth the following concerning the proposed collection of
information:
(1) Title of the information collection proposal: Proposed Rule--
Implementation of the Housing for Older Persons Act of 1995.
(2) Summary of the collection of information: (i) Section 100.306
of this proposed rule would require that a housing facility or
community seeking to qualify as 55-or-older housing publish and adhere
to policies demonstrating that intent.
(ii) Section 100.307 of this proposed rule would establish two
information collection requirements. First, Sec. 100.307 would require
that an occupant of 55-or-older housing provide reliable documentation
regarding the occupancy of its unit, including the identification of
whether at least one occupant of the unit is 55 years of age or older.
Occupants would be further required to regularly update this
information. Secondly, Sec. 100.307 would require a housing facility or
community to maintain records of these occupancy surveys. The housing
facility or community would be required to produce the records upon:
(1) the filing of a discrimination complaint; and (2) the request of
any person.
(3) Description of the need for the information and its proposed
use: To appropriately determine whether a housing facility or community
qualifies for the housing for older persons exemption, certain
information is required. HUD must determine whether the housing
facility or community: (1) has published and adhered to policies
demonstrating its intent to operate as 55-or-older housing; and (2) can
demonstrate, through reliable surveys and affidavits, that at least 80
percent of its occupied units are occupied by at least one person 55
years of age or older.
(4) Description of the likely respondents, including the estimated
number of likely respondents, and proposed frequency of response to the
collection of information: Respondents will be: (1) occupants of 55-or-
older housing; and (2) providers of 55-or-older housing, such as
manufactured home parks, home owners associations, and property
managers. (Please see paragraph (5) below for the number of likely
respondents and the proposed frequency of the response to the
collection of information.)
(5) Estimate of the total reporting and recordkeeping burden that
will result from the collection of information:
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Proposed section of 24 CFR Number of Est. avg. response time
Type of collection affected respondents Frequency of response (hrs.) Annual burden hrs.
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Publication of policies 24 CFR 100.306 1,000 1.......................... 2 hrs.................. 2,000
demonstrating intent to
operate as 55-or-older housing.
Data on the age of occupants in 24 CFR 100.307 10,000 1.......................... .1 hrs................. 1,000
55-or-older housing.
Recordkeeping.................. 24 CFR 100.307 1,000 One time every other year.. 5 hrs.................. 2,500,
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Total Burden............. ........................... ........... ........................... ....................... 5,500
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(c) In accordance with 5 CFR 1320.8(d)(1), the Department is
soliciting comments from members of the public and affected agencies
concerning the proposed collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
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(4) Minimize the burden of the collection of information on those
who are to respond; including through the use of appropriate automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
(d) OMB is required to make a decision concerning the collection of
information contained in this proposed rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not effect the
deadline for the public to comment on the proposed rule. Comments on
the paperwork collection requirements contained in this rule must be
submitted to those persons indicated in the Addresses section of this
preamble.
Unfunded Mandates Reform Act
The Secretary has reviewed this proposed rule before publication
and by approving it certifies, in accordance with the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1532), that this proposed rule does not
impose a Federal mandate that will result in the expenditure by State,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year.
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 forth in this proposed rule is categorically
excluded from the requirements of the National Environmental Policy Act
of 1969.
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 proposed rule would 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 proposes to implement the requirements of HOPA by revising
the parameters 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.
Executive Order 12606, The Family.
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this proposed rule would
not have a potential significant impact on family formation,
maintenance, and general well-being and, thus, is not subject to review
under the Order. This proposed rule would update HUD's regulations
governing ``housing for older persons'' to reflect the changes made by
HOPA. No significant change in existing HUD policies or programs would
result from promulgation of this proposed rule, as those policies and
programs relate to family concerns.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this proposed rule, and in so
doing certifies that this proposed rule would not have a significant
economic impact on a substantial number of small entities. This rule
proposes to update HUD's regulations implementing the ``housing for
older persons'' exemption to the Fair Housing Act. Specifically, the
rule would implement the statutory amendments made by HOPA. These
revisions would 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 proposed rule would 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 proposed to be 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
Sec. Sec. 100.305, 100.306, 100.307, and 100.308, to read as follows:
Subpart E--Housing for Older Persons
Sec. 100.304 55 or over housing.
(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) Sections 807(b)(2)(C) and 807(b)(5)(A) and (B) of the Fair
Housing Act; 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; and
(6) A mobile home park.
(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 55-
or-older housing, 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 for 55-or-older housing 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 55-
or-older housing 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 vacated
was 55 years of age or older.
(d) Newly constructed housing for first occupancy after March 12,
1989
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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 facilities or communities that have been
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.
(5) 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) 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
(ii) Meets the requirements of Sec. Sec. 100.304, 100.305, 100.306,
and 100.307.
(f) 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.
(g) Each housing facility or community may determine the age
restriction for units that are not occupied by at least one person 55
years of age or older.
Sec. 100.306 Intent to operate as 55 or over housing.
(a) In order for a housing facility or community to qualify as 55-
or-older housing, 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) The use of phrases such as ``adult living'', ``adult
community'', ``40 and over community'', or similar statements in any
written advertisement or prospectus do not create a presumption that
the housing facility or community intends to operate as housing for
persons 55 years of age or older.
(c) If there are substantial legal impediments to removing language
from deed or other restrictions that may be inconsistent with the
intent to provide 55-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.
(d) The fact that a unit is occupied by a family with a child under
eighteen years of age, and not by a person 55 years of age or older,
shall not be considered in determining whether the housing facility or
community intends to operate as 55-or-older housing.
Sec. 100.307 Verification of occupancy.
(a) 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 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 a rule finalizing the policies and procedures described in this
proposed 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) 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 certificates;
(3) Passports;
(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 an adult member of the household asserting that at
least one person in the unit is 55 years of age or older.
(e) 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.
(f) 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 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.
(g) 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.
(h) Occupancy surveys shall be available for inspection upon
reasonable notice and request by any person.
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 as 55-or-older housing.
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(b)(1) A person claiming the good faith defense must have actual
knowledge that the housing facility or community has, through an
authorized representative, asserted in writing that it qualifies as 55-
or-older housing. The person claiming the good faith defense must
demonstrate this actual knowledge through reliable evidence.
(2) 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.
(c) 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 55-or-older housing. 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: October 11, 1996.
Elizabeth K. Julian,
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
55-or-older Exemption to the Fair Housing Act
Sections
1. Purpose
2. 80 percent occupancy.
3. Intent to operate as 55-or-older housing.
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,
Sec. Sec. 100.304, 100.305, 100.306, and 100.307 set forth the
requirements for housing seeking to qualify for the 55-or-older
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 as 55-or-older housing, 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.
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, 1996, Buena Vista declares itself to be 55-or-older
housing. 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 by live-in health aides who
provide reasonable accommodations to residents with disabilities.
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
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.
Example 2
Topaz House is a cooperative of 100 units. On January 20, 1996,
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 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.
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.
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
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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.
3. Intent To Operate as 55-or-Older Housing
Section 100.306 provides that in order for a housing facility or
community to qualify as 55-or-older housing, 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 self-
certification provisions:
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 over the age of 18 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. 97-840 Filed 1-13-97; 8:45 am]
BILLING CODE 4210-28-P
