Senior communities (aka “active adult” communities) engage in a form of discrimination through the imposition of age restrictions for their communities. The legal authority for senior communities to do so is provided under both federal and state statutes.
Federal Statutes: FFHA & HOPA
The Federal Fair Housing Act prohibits discrimination in the sale, rental and financing of residential of dwellings based upon familial status. Its provisions generally bar restrictions in an association’s governing documents (i.e., its CC&Rs) that serve to exclude children from the association’s development. In 1988 Congress created an exemption to the provisions barring discrimination on the basis of familial status for those housing developments that qualified as housing for persons age 55 and older (senior communities). This exemption was then refined through the Housing for Older Persons Act of 1995 (HOPA). HOPA is administered through by Department of Housing and Urban Development (HUD).
Qualification Requirements
To qualify as a senior community, a housing development or homeowners association must satisfy the following requirements:
- At least eighty percent (80%) of the occupied properties must have at least one occupant that is 55 years of age or older;
- The association must publish and adhere to policies that demonstrate its intent to operate as a senior community for persons 55 years of age or older; and
- The association must comply with age-verification procedures to ensure compliance with the age requirements.
Prior Failure to Comply with Age-Verification Requirements
If an association has consistently maintained the required 80% threshold but has previously failed to comply with HOPA’s age-verification requirements, that in itself will not disqualify the association from being afforded HOPA’s protections. (Balvage v. Ryderwood Improvement Services Assn. (9th Cir. 2011) 642 F.3d 765.)
California Statutes: Unruh & Civil Code § 51.3
California has provided protections against discrimination through the Unruh Civil Rights Act found at Civil Code Section 51. An exemption for senior citizen developments similar to that provided under HOPA is codified at Civil Code Section 51.3. Section 51.3 generally requires that an association’s CC&Rs set forth the limitations on age, where such limitations require that:
- Each unit must be occupied by at least one (1) “senior citizen” or “qualifying resident,” and
- Each other resident within a unit must be either a “qualified permanent resident,” a “permitted health care resident,” or another person whose occupancy is permitted under Civil Code Section 51.4(b). (Civ. Code § 51.3(c).)
“Senior Citizen” and “Qualifying Resident” Defined
Civil Code Section 51.3 defines a “qualifying resident” or “senior citizen” as a person 62 years of age or older, or 55 years of age or older depending on the category of the senior community. (Civ. Code § 51.3(b)(1).)
“Qualified Permanent Resident” Defined
Civil Code Section 51.3 defines a “qualified permanent resident” as a person who meets both of the following requirements:
- Was residing with the qualifying resident prior to the qualifying resident’s death, hospitalization or other prolonged absence, or prior to the dissolution of marriage with the qualifying resident; (Civ. Code § 51.3(b)(2)(A)) and
- Was 45 years of age or older, or was a spouse, cohabitant or person providing primary physical or economic support to the qualifying resident. (Civ. Code § 51.4(b)(2)(B).)
A qualified permanent resident also includes a disabled person who is a child or grandchild of the qualifying resident or a qualified permanent resident who needs to live with the qualifying resident or qualified permanent resident because of the disabled person’s disability. (Civ. Code § 51.3(b)(3).)
“Permitted Health Care Resident” Defined
Civil Code Section 51.3 defines a “permitted health care resident” as a person hired to provide “substantial” live-in, long term, or terminal health care to a qualifying resident (i.e., a caregiver), or a family member of the qualifying resident providing that care. (Civ. Code § 51.3(b)(7).) Section 51.3 also provides some limited rights for permitted health care residents to continue residing in the unit in the absence of the qualifying resident. (Civ. Code § 51.3(b)(7); See also “Caregivers within Senior Communities.”)
Senior Communities within Riverside County: Civil Code § 51.11
The provisions of Civil Code Section 51.3 are essentially mirrored in Civil Code Section 51.11. Section 51.11 is applicable only to senior communities located within Riverside County. (Civ. Code § 51.11(j).)
Enforcement
Once a senior community has been established, its age restrictions are legally enforceable. (Huntington Landmark v. Ross (1989) 213 Cal.App.3d 1012.)
