CAI-NJ July 2018 (w)(1)

O N E DO THING BETTER

HOPA: Housing for Older Persons Act of 1995 By : Richard B. Linderman, Esq., Par tner with Ansell Grimm & Aaron PC The Housing for Older Persons Act of 1995 (HOPA) amended the Federal Fair Housing Act which prohibited discrimination in housing and real estate transactions based on race, religion, color, sex, handicap, national origin and familial status. HOPA required that communities claiming the exemption establish procedures for age verification. It also eliminated the requirement that hous- ing for elderly people have significant facilities and services designed for its residents.

HOPA allows for “age dis- crimination” by providing an exemption for communities aimed at residents aged 55 or older 55

1995 Year in which President Bill Clinton signed the housing for older persons exemption against familial status discrimination

80/20 80% of the occupied homesmust be occupied by at least one person 55 years of age or older

62 Another exemption under HOPA is communities that are occu- pied solely by persons aged 62 years or older. Several states have their own fair housing laws which include additional protected classes such as sex- ual orientation, marital status and ancestry. Under these laws, a state may also allow for age protection, which begins at a de- fined age.

2 years

18 The community must survey the residents and provide verification by affidavits.

Under HOPA, a community may prohibit residents under the age of 18, and reserve its

N O

Phrases such as “adult living”, “adult community”, “no kids” or similar language in any published advertisement or signage is prohibited.

homes for residents 55 and older, only if the community satisfies three requirements.

•Established in 1968, the Fair Housing Act protects homebuyers and renters from discrimination based on seven different areas. Age is not a protected class under the federal Fair Housing Act. •While age is not a protected class under the Fair Housing Act, the law does prevent discrimination based on familial status. Familial status can refer to households which include pregnant women or children under the age of 18. •3 requirements - the community must have (a) at least 80 percent of the homes occupied by at least one person who is 55 years of age or older; (b) publish and adhere to policies that show the intent to provide housing for older persons; and (c) comply with the federal rules for verification of age and occupancy. •A community that is not a HOPA community may convert to one by complying with all 3 of the criteria set forth above. •The HOPA exemption requires that a summary of the occupancy survey results be made available for public inspection. The summary does not need to contain confidential information about the individual residents and may simply list the total number of homes occupied by person aged 55 or older. •A condominium or HOA must post a statement in its Common Area stating that the association is “housing for persons 55 years of age or older” •HOPA and related laws do not prevent communities from being exclusive to older adults as these laws seek to recognize the benefit of senior housing programs. •Age verification - birth certificate, passport, driver’s license, military ID, immigration card, or any other state, local, national or international documentation, provided it contains current information about the age or birth of the resident is deemed reliable for age verification. •According to HUD, the right to possession by a surviving spouse or heir is not governed by HOPA or the Fair Housing Act. Generally, whether an under- age heir or surviving spouse can occupy the home following the death of the 55 or older occupant is a matter of state/local law or custom, and usually governed by a private contractual agreement between the housing developer and the individuals who purchased or rented the home. In New Jersey, the

community association’s declaration or master deed will usually set forth the rules which govern the effect upon the heir/surviving spouse. The provision allowing 20 percent of the homes to be occupied by persons under the age of 55 is intended to prevent a community from losing the exemption due to situations where there are surviving spouses and underage heirs. •There are circumstances under which a 55 or older owner/tenant may be absent from a home without the absence affecting the exemption status of the community. If the 55 or older occupant is on vacation, hospitalized or absent for a season, this absence will not negatively affect the exempt status. As long as the home is not rented and the 55 age person returns on a periodic basis and maintains the financial and legal responsibility for the home.

Interested in writing for the Do One Thing Better Section of Community Trends® ? Contact:Jaclyn Oskierko jaclyn@cainj.org for more information.

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