HUD Senior Housing & the Familial Status Exemption

Our September lesson, How to Comply with Fair Housing Law in Senior Communities, originally listed the following types of properties that can qualify for the “housing for older persons” exemption to the Fair Housing Act’s familial status provisions:

1. Publicly funded senior housing communities: Housing communities where HUD has determined that the dwelling is specifically designed for and occupied by elderly persons under a federal, state, or local government program;
2. 62-and-older communities: Communities intended for, and occupied solely by, persons who are 62 or older; and
3. 55-and-older communities: Communities that house at least one person who is 55 or older in at least 80 percent of the occupied units and adheres to a policy that demonstrates intent to house persons who are 55 or older.

Advisory board member Gwen Volk points out that the first category—publicly funded senior housing—is NOT automatically exempt. She warns that HUD owners should not assume that a HUD elderly designation gives them—or can give them—the Housing for Older Persons exemption from the FHA’s familial status provisions.

In fact, she says, HUD has specifically said otherwise. In the March 8, 2016 Federal Register, in discussing 42 U.S.C. §3607(b)(2)(A) and 24 CFR §100.302, HUD stated: “HUD, however, has never designated one of its own programs as housing for older persons under this exemption.”

HUD’s regulations also distinguish between an “elderly project” and a project that qualifies as “housing for older persons.” A HUD property’s program eligibility requirements may permit it to restrict occupancy to elderly families, but that is not the same thing as being exempt from the Fair Housing Act’s familial status protections.

Volk also points out that HUD Handbook 4350.3 REV-1, ¶3-23.D.3 specifically states that “Owners may not exclude otherwise eligible elderly families with children from elderly properties or elderly/disabled properties covered by this handbook.” The Handbook then notes that, generally, a two-persons-per-bedroom occupancy standard is acceptable.

“An elderly designation in HUD housing is not the same thing as a Housing for Older Persons exemption,” Volk says. “For example, an otherwise qualified 62+ grandmother and her 16-year-old grandson cannot be rejected from a HUD elderly property simply because the household includes a child, assuming they meet the applicable occupancy standards.”

Volk says that USDA Rural Development (RD) follows the same concept. HB-2-3560 defines an elderly household based on the tenant or co-tenant meeting the elderly/disability requirement and specifically says, “An elderly family may include a person younger than 62 years of age.” In addition, 7 CFR § 3560.156(c)(1) states:

(c)        Prohibited lease clauses. Lease clauses that are not allowed include:

(1)        Admission of modified tenancy. Clauses which permit the borrower to modify the tenancy agreement or exclude children under 18;

The September lesson has been revised online accordingly. We thank Gwen Volk for clarifying this issue with regard to HUD-funded senior housing.