If you’re thinking of limiting tenancy at one or more of your rental properties to seniors, you need to follow certain rules to ensure that you don’t get in trouble for fair housing violations. The Fair Housing Act (FHA) (42 U.S. Code § § 3601-3619 and 3631), a federal law, bans discrimination based on familial status, which means landlords normally can’t turn away families with children.
But the FHA includes certain exemptions that enable landlords to set aside some or even all of their apartments for seniors without having to worry about saying no to families with children. If you’re thinking of operating a senior community, a good first step is to get familiar with the basics of senior housing so you can be sure you’ll be proceeding under an exemption.
Senior Housing Exemptions
The FHA, along with the Housing for Older Persons Act (HOPA), allows for senior housing by carving out three exemptions to its ban on familial status:
- 62 and older. The “62 and older” exemption is the strictest but also the most straightforward. To meet this exemption, every occupant at your property must be at least 62 years old.
- 55 and older. The “55 and older” exemption gives you some leeway when renting out your apartments. Under this exemption, at least one occupant in at least 80% of your occupied apartments must be at least 55 years old. In addition, your community must adhere to a policy that demonstrates intent to house people who are 55 or older. This extra restriction helps ensure that a landlord who wasn't planning to run a senior community but just happens to meet the 55 and older exemption doesn’t use it as a defense to a familial status discrimination claim.
- Government program. For this exemption to apply, the U.S. Department of Housing and Urban Development (HUD) must determine that your property is specifically designed for and occupied by older persons under some federal, state, or local government program.
What to Know if You Meet an Exemption
Meeting an exemption means you can legally turn away families with children to rent to seniors in accordance with the exemption. If you qualify for an exemption, here are some important points to note:
- You must strictly comply with the exemption’s requirements. Note that you can create stricter versions of these exemptions, if you wish, as doing so will still put you in compliance with the normal exemptions. If a state bans housing discrimination based on age, however, a landlord who adds these restrictions may run afoul of the state law.
- You must be able to prove compliance with an exemption. When tenants apply for senior housing, you'll need to ask them for proof of their age (such as 55 or 62 and older) via a birth certificate, driver's license, passport, immigration card, military identification, or other accepted state, local, national, or international documentation.
- You don’t need to provide special services or facilities. Until 1995, the 55-and-older exemption imposed a requirement that properties offer "significant services and facilities specifically designed to meet the physical and social needs of older persons." While there is no such requirement today, you should keep in mind that you're responsible for considering tenants’ accommodation and modification requests and granting them if they’re reasonable.
- You may treat tenants with children differently. If your property meets the 55-and-older exemption, you have the option of choosing if you wish to rent to families with children. If you do rent to families with children, you may legally discriminate against them when it comes to the terms and conditions of their rentals (as long as you comply with other state and local laws and don't discriminate based on other protected classes under the FHA).
Learn More About Housing Discrimination
The Rental Applications and Tenant Screening section of Nolo.com includes several useful articles on how to legally choose tenants and avoid fair housing complaints and lawsuits. Also, check out Every Landlord’s Legal Guide, by Marcia Stewart, Ralph Warner and Janet Portman (Nolo) for detailed advice on housing discrimination and how to avoid fair housing lawsuits.