Age restrictions
A 55-plus community is not automatically legal. Here is the federal test it has to pass.
Restricting housing to residents 55 and older is normally illegal familial-status discrimination under the Fair Housing Act. A community may only do it if it qualifies for the Housing for Older Persons Act (HOPA) exemption, which requires keeping at least 80 percent of occupied units housing someone 55 or older, and publishing and following policies that prove the community actually operates that way.
The default rule: age restrictions are discrimination
The Fair Housing Act protects "familial status," meaning a board generally cannot refuse to sell or rent, or otherwise limit occupancy, based on the age of the people living in a household. An age-restricted, "55 and older" community is only lawful because Congress carved out a narrow exception for it: the Housing for Older Persons Act, or HOPA. A community does not get this exemption automatically just by writing "55-plus" into its declaration. It has to meet HOPA's tests, on an ongoing basis, or the exemption can be lost.
The 80 percent occupancy test
HUD's regulation sets a specific bar: a qualifying 55-plus community must keep at least 80 percent of its occupied units housing at least one resident age 55 or older, with limited allowances for newly built sections and for units occupied by on-site employees under 55.
"At least 80 percent of [a qualifying community's] occupied units must be occupied by at least one person 55 years of age or older."
Source: 24 CFR Part 100, Subpart E, Housing for Older Persons, U.S. Department of Housing and Urban Development
This is a running average, not a one-time checkbox at sale. If turnover pushes a community below 80 percent, its exemption is at risk, which means its ability to keep enforcing the age restriction at all is at risk.
Prove it, don't just claim it
Meeting the occupancy percentage is not enough on its own. HUD also requires the community to publish and adhere to policies and procedures that demonstrate its intent to operate as 55-plus housing, verified through its advertising, leases, rules, and actual practice.
"Publish and adhere to policies and procedures that demonstrate its intent to operate" as 55-plus housing.
Source: 24 CFR Part 100, Subpart E, Housing for Older Persons, U.S. Department of Housing and Urban Development
One drafting mistake shows up again and again: marketing or governing documents that call the community an "adult living" or "adult community." HUD's regulation specifically says that phrasing is "not consistent with the intent" to qualify for the exemption, because HOPA is about age, not marital or family status. A board updating its website, welcome packet, or bylaws should check that language before it becomes evidence against the exemption.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
Your 55-plus community currently has 78 percent of occupied units housing at least one resident 55 or older. What does this mean?
A 55-plus community's marketing brochure describes it as an "adult community." Under HUD's rules, what does this create?
A board requires that every single occupied unit, without exception, have a resident 55 or older. Does HOPA require zero exceptions?
Sources
- 24 CFR Part 100, Subpart E, Housing for Older Persons, U.S. Department of Housing and Urban Development
Related elsewhere in the Academy
Amenities
Read Occupancy restrictions next to see how a headcount limit differs from an age requirement, and why boards often confuse the two.
The specific survey, affidavit, or verification paperwork HOPA requires to document your 80 percent threshold is not covered on this page. Work with your association's counsel to set up that documentation correctly.