2000 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Proposed Rules

1A subsequent technical correction was

published on April 25, 1996 (61 FR 18248).

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

24 CFR Part 100

[Docket No. FR–4094–P–01]

RIN 2529–AA80

Implementation of the Housing for

Older Persons Act of 1995

AGENCY: Office of the Assistant

Secretary for Fair Housing and Equal

Opportunity, HUD.

ACTION: Proposed rule.

SUMMARY: This proposed rule would

implement the Housing for Older

Persons Act of 1995 (HOPA). HOPA

amended the requirements for

qualification under the ‘‘housing for

older persons’’ exemption established

by the Fair Housing Act. In addition,

HOPA established a good faith defense

against civil money damages for persons

who reasonably relied in good faith on

the application of the ‘‘housing for older

persons’’ exemption even when, in fact,

the housing provider did not qualify for

the exemption. This rule proposes to

update HUD’s regulations to reflect the

changes made by HOPA.

DATES: Comments on this proposed rule

and the information collection

requirements must be received on or

before March 17, 1997.

ADDRESSES: Interested persons are

invited to submit comments regarding

this proposed rule to the Office of the

General Counsel, Rules Docket Clerk,

Room 10276, Department of Housing

and Urban Development, 451 Seventh

Street, SW, Washington, DC 20410–

0500. Communications should refer to

the above docket number and title and

to the specific sections in the regulation.

Facsimile (FAX) comments are not

acceptable. A copy of each

communication submitted will be

available for public inspection and

copying during regular business hours

at the above address. For additional

information concerning the information

collection requirements contained in

this rule, please see the ‘‘Findings and

Certifications’’ section of this preamble.

A copy of any comment regarding the

information collection requirements

must be sent to: Joseph F. Lackey, Jr.,

HUD Desk Officer, Office of

Management and Budget, New

Executive Office Building, Room 10235,

Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Sara

K. Pratt, Director, Office of

Investigations, Office of Fair Housing

and Equal Opportunity, Room 5204,

U.S. Department of Housing and Urban

Development, 451 Seventh Street, SW,

Washington, DC 20410–0500, telephone

(202) 708–0836. (This is not a toll-free

number.) Hearing or speech-impaired

individuals may access this number via

TTY by calling the toll-free Federal

Information Relay Service at 1–800–

877–8399.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Housing for Older Persons Act of

1995

The Fair Housing Act (Title VIII of the

Civil Rights Act of 1968, as amended, 42

U.S.C. 3601–3619) (the Act) exempts

‘‘housing for older persons’’ from the

prohibitions against discrimination

because of familial status. Section

807(b)(2)(C) of the Act exempts housing

intended and operated for occupancy by

persons 55 years of age or older that

satisfies certain criteria. HUD has

implemented the ‘‘housing for older

persons’’ exemption at 24 CFR part 100,

subpart E.

The Housing for Older Persons Act of

1995 (Pub. L. 104–76, approved

December 28, 1995) (HOPA) replaced

the original parameters of the 55-orolder exemption. Section 2 of HOPA

redefined 55-or-older housing as

housing:

(C) intended and operated for occupancy

by persons 55 years of age or older, and—

(i) at least 80 percent of the occupied units

are occupied by at least one person who is

55 years of age or older;

(ii) the housing facility or community

publishes and adheres to policies and

procedures that demonstrate the intent

required under this subparagraph; and

(iii) the housing facility or community

complies with rules issued by the Secretary

[of HUD] for verification of occupancy,

which shall——

(I) provide for verification by reliable

surveys and affidavits; and

(II) include examples of the types of

policies and procedures relevant to a

determination of compliance with the

requirement of clause (ii). Such surveys and

affidavits shall be admissible in

administrative and judicial proceedings for

the purposes of such verification.

The most substantial change made by

HOPA was the elimination of the

‘‘significant facilities and services’’

requirement. Section 807(b)(2)(C) of the

Act originally required that 55-or-older

housing provide ‘‘significant facilities

and services specifically designed to

meet the physical or social needs of

older persons.’’ HOPA also adds the

new requirement that the housing

facility or community comply with any

HUD regulations on verification and

occupancy.

In other respects, however, the new

requirements are equivalent to the

former provisions. HOPA requires that a

housing facility or community seeking

to claim the 55-or-older exemption

show three factors. Similar to original

section 807(b)(2)(C) of the Act, HOPA

requires: (1) that the housing be

intended and operated for persons 55

years of age or older; (2) that at least 80

percent of the occupied units be

occupied by at least one person who is

55 years of age or older; and (3) the

housing facility or community publish

and adhere to policies and procedures

that demonstrate its intent to qualify for

the 55-or-older exemption. The housing

facility or community must also comply

with rules issued by HUD for the

verification of occupancy.

In addition, section 3 of HOPA added

a new section 807(b)(5) to the Act. This

new section established a good faith

defense against civil money damages for

persons who reasonably relied in good

faith on the application of the 55-orolder exemption, even when, in fact, the

housing facility or community did not

qualify for the exemption. New section

807(b)(5) provides:

(5)(A) A person shall not be held

personally liable for monetary damages for a

violation of this title if such person

reasonably relied, in good faith, on the

application of the exemption under this

subsection relating to housing for older

persons.

(B) For purposes of this paragraph, a

person may only show good faith reliance on

the application of the exemption by showing

that—

(i) such person has no actual knowledge

that the facility or community is not, or will

not be, eligible for such exemption; and

(ii) the facility or community has stated

formally, in writing, that the facility or

community complies with the requirements

for such exemption.

B. This Proposed Rule

On April 1, 1996 (61 FR 14378), HUD

published a final rule streamlining its

regulations implementing the Act.1 The

April 1, 1996 final rule, which was part

of HUD’s efforts to implement the

President’s regulatory reform initiative,

removed the obsolete provisions

describing the ‘‘significant facilities and

services’’ requirement. The rule also

made several other streamlining changes

to HUD’s regulations at subpart E of 24

CFR part 100. However, because the

April 1, 1996 rule was published for

effect without prior public comment,

HUD postponed making the more

substantial changes necessary to

complete its implementation of HOPA.

This rule proposes to make these

regulatory amendments.
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This rule proposes to revise § 100.304,

which presents an overview of the 55-

or-older exemption, to more closely

track the HOPA requirements. The rule

also proposes to create a new § 100.305,

which would update the 80 percent

occupancy requirements. A new

§ 100.306 would describe how a facility

or community may establish its intent to

operate as 55-or-older housing. New

§ 100.307 would set forth the necessary

procedures for verification of the 80

percent occupancy requirements.

Finally, a new § 100.308 would

implement the good faith defense

against civil money damages.

Section 2 of HOPA requires that any

implementing HUD regulations

‘‘include examples of the types of

policies and procedures relevant to a

determination of compliance with’’ the

statute’s intent requirement.

Accordingly, paragraph (a) of proposed

§ 100.306 would list several factors

which HUD considers relevant in

determining whether the housing

facility or community intends to operate

as housing for older persons. However,

24 CFR 100.306(b) would state that the

use of phrases such as ‘‘adult living’’,

‘‘adult community’’, ‘‘40 and over

community’’, or similar statements in

any written advertisement or prospectus

do not create a presumption that the

housing community satisfies HOPA’s

intent requirement. The use of such

phrases does not show that the facility

or community truly intends to operate

as housing for older persons and are

inconsistent with that intent. HUD, in

order to make a valid assessment of

intent, will consider the other measures

taken by the facility or community to

demonstrate the intent required by

HOPA. Moreover, the housing facility or

community may not evict families with

children in order to achieve occupancy

of at least 80 percent of the occupied

units by at least one person 55 years of

age or older.

HUD also proposes to provide

guidance to assist housing facilities and

communities in applying the

requirements of this proposed rule.

These examples are contained in an

appendix to this proposed rule. The

appendix would not be codified in title

24 of the CFR. HUD may update or

revise the appendix as necessary.

II. Findings and Certifications

Public Reporting Burden

(a) The information collection

requirements contained in §§ 100.306

and 100.307 of this proposed rule have

been submitted to the Office of

Management and Budget (OMB) for

review under the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501–3520). An

agency may not conduct or sponsor, and

a person is not required to respond to,

a collection of information unless the

collection displays a valid control

number.

(b) In accordance with 5 CFR

1320.5(a)(1)(iv), the Department is

setting forth the following concerning

the proposed collection of information:

(1) Title of the information collection

proposal: Proposed Rule—

Implementation of the Housing for

Older Persons Act of 1995.

(2) Summary of the collection of

information: (i) Section 100.306 of this

proposed rule would require that a

housing facility or community seeking

to qualify as 55-or-older housing

publish and adhere to policies

demonstrating that intent.

(ii) Section 100.307 of this proposed

rule would establish two information

collection requirements. First, § 100.307

would require that an occupant of 55-orolder housing provide reliable

documentation regarding the occupancy

of its unit, including the identification

of whether at least one occupant of the

unit is 55 years of age or older.

Occupants would be further required to

regularly update this information.

Secondly, § 100.307 would require a

housing facility or community to

maintain records of these occupancy

surveys. The housing facility or

community would be required to

produce the records upon: (1) the filing

of a discrimination complaint; and (2)

the request of any person.

(3) Description of the need for the

information and its proposed use: To

appropriately determine whether a

housing facility or community qualifies

for the housing for older persons

exemption, certain information is

required. HUD must determine whether

the housing facility or community: (1)

has published and adhered to policies

demonstrating its intent to operate as

55-or-older housing; and (2) can

demonstrate, through reliable surveys

and affidavits, that at least 80 percent of

its occupied units are occupied by at

least one person 55 years of age or older.

(4) Description of the likely

respondents, including the estimated

number of likely respondents, and

proposed frequency of response to the

collection of information: Respondents

will be: (1) occupants of 55-or-older

housing; and (2) providers of 55-or-older

housing, such as manufactured home

parks, home owners associations, and

property managers. (Please see

paragraph (5) below for the number of

likely respondents and the proposed

frequency of the response to the

collection of information.)

(5) Estimate of the total reporting and

recordkeeping burden that will result

from the collection of information:

Type of collection Proposed section of

24 CFR affected

Number of

respondents

Frequency of response

Est. avg. response time

(hrs.)

Annual burden hrs.

Publication of policies demonstrating

intent to operate as 55-or-older housing.

24 CFR 100.306 1,000 1 ............................. 2 hrs. ................ 2,000

Data on the age of occupants in 55-orolder housing.24 CFR 100.307 10,000 1 ............................. .1 hrs. ............... 1,000

Recordkeeping ...................................... 24 CFR 100.307 1,000 One time every

other year.

5 hrs. ................ 2,500,

Total Burden ............................... .................... ................................ ........................... 5,500

(c) In accordance with 5 CFR

1320.8(d)(1), the Department is

soliciting comments from members of

the public and affected agencies

concerning the proposed collection of

information to:

(1) Evaluate whether the proposed

collection of information is necessary

for the proper performance of the

functions of the agency, including

whether the information will have

practical utility;

(2) Evaluate the accuracy of the

agency’s estimate of the burden of the

proposed collection of information;

(3) Enhance the quality, utility, and

clarity of the information to be

collected; and
2002 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Proposed Rules

(4) Minimize the burden of the

collection of information on those who

are to respond; including through the

use of appropriate automated collection

techniques or other forms of information

technology, e.g., permitting electronic

submission of responses.

(d) OMB is required to make a

decision concerning the collection of

information contained in this proposed

rule between 30 and 60 days after

publication of this document in the

Federal Register. Therefore, a comment

to OMB is best assured of having its full

effect if OMB receives it within 30 days

of publication. This does not effect the

deadline for the public to comment on

the proposed rule. Comments on the

paperwork collection requirements

contained in this rule must be submitted

to those persons indicated in the

ADDRESSES section of this preamble.

Unfunded Mandates Reform Act

The Secretary has reviewed this

proposed rule before publication and by

approving it certifies, in accordance

with the Unfunded Mandates Reform

Act of 1995 (2 U.S.C. 1532), that this

proposed rule does not impose a Federal

mandate that will result in the

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year.

Environmental Impact

In accordance with 24 CFR 50.19(c)(3)

of the Department’s regulations,

published in a final rule on September

27, 1996 (61 FR 50914), the policy set

forth in this proposed rule is

categorically excluded from the

requirements of the National

Environmental Policy Act of 1969.

Executive Order 12612, Federalism

The General Counsel, as the

Designated Official, under section 6(a)

of Executive Order 12612, Federalism,

has determined that the policies

contained in this proposed rule would

not have substantial direct effects on

States or their political subdivisions, or

the relationship between the Federal

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. This rule proposes

to implement the requirements of HOPA

by revising the parameters for ‘‘55-orolder’’ housing found at 24 CFR part

100, subpart E. It effects no changes in

the current relationships among the

Federal government, the States and their

political subdivisions in connection

with HUD programs.

Executive Order 12606, The Family.

The General Counsel, as the

Designated Official under Executive

Order 12606, The Family, has

determined that this proposed rule

would not have a potential significant

impact on family formation,

maintenance, and general well-being

and, thus, is not subject to review under

the Order. This proposed rule would

update HUD’s regulations governing

‘‘housing for older persons’’ to reflect

the changes made by HOPA. No

significant change in existing HUD

policies or programs would result from

promulgation of this proposed rule, as

those policies and programs relate to

family concerns.

Regulatory Flexibility Act

The Secretary, in accordance with the

Regulatory Flexibility Act (5 U.S.C.

605(b)), has reviewed and approved this

proposed rule, and in so doing certifies

that this proposed rule would not have

a significant economic impact on a

substantial number of small entities.

This rule proposes to update HUD’s

regulations implementing the ‘‘housing

for older persons’’ exemption to the Fair

Housing Act. Specifically, the rule

would implement the statutory

amendments made by HOPA. These

revisions would provide housing

facilities and communities with a better

understanding of what housing qualifies

for the ‘‘55-or-older’’ exemption to the

Fair Housing Act’s prohibitions against

discrimination on the basis of familial

status. The proposed rule would not

have any meaningful impact on small

entities.

List of Subjects in 24 CFR Part 100

Aged, Fair housing, Individuals with

disabilities, Mortgages, Reporting and

recordkeeping requirements.

Accordingly, 24 CFR part 100 is

proposed to be amended as follows:

PART 100—DISCRIMINATORY

CONDUCT UNDER THE FAIR HOUSING

ACT

1. The authority citation for 24 CFR

part 100 continues to read as follows:

Authority: 42 U.S.C. 3535(d), 3600–3619.

2. Subpart E is amended by revising

§ 100.304; and by adding § § 100.305,

100.306, 100.307, and 100.308, to read

as follows:

Subpart E—Housing for Older Persons

§ 100.304 55 or over housing.

(a) The provisions regarding familial

status in this part shall not apply to

housing intended and operated for

persons 55 years of age or older.

Housing qualifies for this exemption if:

(1) The alleged violation occurred

before December 28, 1995 and the

housing community or facility complied

with the HUD regulations in effect at the

time of the alleged violation; or

(2) The alleged violation occurred on

or after December 28, 1995 and the

housing community or facility complies

with:

(i) Sections 807(b)(2)(C) and

807(b)(5)(A) and (B) of the Fair Housing

Act; and

(ii) 24 CFR 100.305, 100.306, and

100.307.

(b) For purposes of this subpart,

housing facility or community means

any dwelling or group of dwelling units

governed by a common set of rules,

regulations or restrictions. A portion or

portions of a single building shall not

constitute a housing facility or

community. Examples of a housing

facility or community include, but are

not limited to:

(1) A condominium association;

(2) A cooperative;

(3) A property governed by a

homeowners’ or resident association;

(4) A municipally zoned area;

(5) A leased property under common

private ownership; and

(6) A mobile home park.

(c) For purposes of this subpart, older

person means a person 55 years of age

or older.

§ 100.305 80 percent occupancy.

(a) In order for a housing facility or

community to qualify as 55-or-older

housing, at least 80 percent of its

occupied units must be occupied by at

least one person 55 years of age or older.

(b) For purposes of this subpart,

occupied unit means:

(1) A dwelling unit that is actually

occupied by one or more persons on the

date that the exemption for 55-or-older

housing is claimed; or

(2) A temporarily vacant unit, if the

primary occupant has resided in the

unit during the past year and intends to

return on a periodic basis.

(c) For purposes of this subpart,

occupied by at least one person 55 years

of age or older means that on the date

the exemption for 55-or-older housing is

claimed:

(1) At least one occupant of the

dwelling unit is 55 years of age or older;

or

(2) If the dwelling unit is temporarily

vacant, at least one of the occupants

immediately prior to the date on which

the unit was vacated was 55 years of age

or older.

(d) Newly constructed housing for

first occupancy after March 12, 1989
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need not comply with the requirements

of this section until at least 25 percent

of the units are occupied. For purposes

of this section, newly constructed

housing includes facilities or

communities that have been unoccupied

for at least 90 days prior to reoccupancy due to renovation or

rehabilitation.

(e) Housing satisfies the requirements

of this section even though:

(1) On September 13, 1988, under 80

percent of the occupied units in the

housing facility or community were

occupied by at least one person 55 years

of age or older, provided that at least 80

percent of the units occupied by new

occupants after September 13, 1988 are

occupied by at least one person 55 years

of age or older.

(2) There are unoccupied units,

provided that at least 80 percent of the

occupied units are occupied by at least

one person 55 years of age or older.

(3) There are units occupied by

employees of the housing facility or

community (and family members

residing in the same unit) who are

under 55 years of age, provided the

employees perform substantial duties

related to the management or

maintenance of the facility or

community.

(4) There are units occupied by

persons who are necessary to provide a

reasonable accommodation to disabled

residents as required by § 100.204.

(5) There are insufficient units

occupied by at least one person 55 years

of age or older, but the housing facility

or community, at the time the

exemption is asserted:

(i) Reserves all unoccupied units for

occupancy by at least one person 55

years of age or older until at least 80

percent of the units are occupied by at

least one person who is 55 years of age

or older; and

(ii) Meets the requirements of

§ § 100.304, 100.305, 100.306, and

100.307.

(f) Where application of the 80

percent rule results in a fraction of a

unit, that unit shall be considered to be

included in the units that must be

occupied by at least one person 55 years

of age or older.

(g) Each housing facility or

community may determine the age

restriction for units that are not

occupied by at least one person 55 years

of age or older.

§ 100.306 Intent to operate as 55 or over

housing.

(a) In order for a housing facility or

community to qualify as 55-or-older

housing, it must publish and adhere to

policies and procedures that

demonstrate its intent to operate as

housing for persons 55 years of age or

older. The following factors, among

others, are considered relevant in

determining whether the housing

facility or community has complied

with this requirement:

(1) The manner in which the housing

facility or community is described to

prospective residents;

(2) Any advertising designed to attract

prospective residents;

(3) Lease provisions;

(4) Written rules, regulations,

covenants, deed or other restrictions;

(5) The maintenance and consistent

application of relevant procedures;

(6) Actual practices of the housing

facility or community; and

(7) Public posting in common areas of

statements describing the facility or

community as housing for persons 55

years of age or older.

(b) The use of phrases such as ‘‘adult

living’’, ‘‘adult community’’, ‘‘40 and

over community’’, or similar statements

in any written advertisement or

prospectus do not create a presumption

that the housing facility or community

intends to operate as housing for

persons 55 years of age or older.

(c) If there are substantial legal

impediments to removing language from

deed or other restrictions that may be

inconsistent with the intent to provide

55-or-older housing, HUD shall consider

documented evidence of a good faith

attempt to remove such language in

determining whether the housing

facility or community complies with the

requirements of this section.

(d) The fact that a unit is occupied by

a family with a child under eighteen

years of age, and not by a person 55

years of age or older, shall not be

considered in determining whether the

housing facility or community intends

to operate as 55-or-older housing.

§ 100.307 Verification of occupancy.

(a) In order for a housing facility or

community to qualify as 55-or-older

housing, it must be able to produce, in

response to a complaint filed under this

title, verification of compliance with

§ 100.305 through reliable surveys and

affidavits.

(b) A facility or community shall,

within 180 days of the effective date of

a rule finalizing the policies and

procedures described in this proposed

rule, develop procedures for routinely

determining the occupancy of each unit,

including the identification of whether

at least one occupant of each unit is 55

years of age or older. Such procedures

may be part of a normal leasing or

purchasing arrangement.

(c) The procedures described in

paragraph (b) of this section must

provide for regular updates, through

surveys or other means, of the initial

information supplied by the occupants

of the housing facility or community.

Such updates must take place at least

once every two years. A survey may

include information regarding whether

any units are occupied by persons

described in paragraphs (e)(1), (e)(3),

and (e)(4) of § 100.305.

(d) The following documents are

considered reliable documentation of

the age of the occupants of the housing

facility or community:

(1) Driver’s license;

(2) Birth certificates;

(3) Passports;

(4) Immigration card;

(5) Military identification;

(6) Any other state, local, national, or

international official documents

containing a birth date of comparable

reliability; or

(7) A certification in a lease,

application, affidavit, or other document

signed by an adult member of the

household asserting that at least one

person in the unit is 55 years of age or

older.

(e) The housing facility or community

must establish and maintain appropriate

policies to require that occupants

comply with the age verification

procedures required by this section.

(f) If the occupants of a particular

dwelling unit refuse to comply with the

age verification procedures, the housing

facility or community may, if it has

sufficient evidence, consider the unit to

be occupied by at least one person 55

years of age or older. Such evidence

may include:

(1) Government records or documents,

such as a census;

(2) Prior forms or applications; or

(3) A statement from an individual

who has personal knowledge of the age

of the occupants. The individual’s

statement must set forth the basis for

such knowledge.

(g) Surveys and verification

procedures which comply with the

requirements of this section shall be

admissible in administrative and

judicial proceedings for the purpose of

verifying occupancy.

(h) Occupancy surveys shall be

available for inspection upon reasonable

notice and request by any person.

§ 100.308 Good faith defense against civil

money damages.

(a) A person shall not be held

personally liable for monetary damages

for discriminating on the basis of

familial status, if the person acted with

the good faith belief that the housing

facility or community qualified as 55-orolder housing.
2004 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Proposed Rules

(b)(1) A person claiming the good

faith defense must have actual

knowledge that the housing facility or

community has, through an authorized

representative, asserted in writing that it

qualifies as 55-or-older housing. The

person claiming the good faith defense

must demonstrate this actual knowledge

through reliable evidence.

(2) For purposes of this section, an

authorized representative of a housing

facility or community means the

individual, committee, management

company, owner, or other entity having

the responsibility for adherence to the

requirements established by this

subpart.

(c) A person shall not be entitled to

the good faith defense if the person has

actual knowledge that the housing

facility or community does not, or will

not, qualify as 55-or-older housing.

Such a person will be ineligible for the

good faith defense regardless of whether

the person received the written

assurance described in paragraph (b) of

this section.

Dated: October 11, 1996.

Elizabeth K. Julian,

Assistant Secretary for Fair Housing and

Equal Opportunity.

Note: This Appendix will not be codified

in Title 24 of the CFR.

Appendix—Examples of Applications

of HUD’s Regulations Governing the 55-

or-older Exemption to the Fair Housing

Act

Sections

1. Purpose

2. 80 percent occupancy.

3. Intent to operate as 55-or-older housing.

4. Verification of occupancy.

5. Future revisions to this appendix.

1. Purpose.

The Fair Housing Act (Title VIII of the

Civil Rights Act of 1968, as amended, 42

U.S.C. 3601–3619) (the Act) exempts

‘‘housing for older persons’’ from the

prohibitions against discrimination

because of familial status. Section

807(b)(2)(C) of the Act exempts housing

intended and operated for occupancy by

persons 55 years of age or older that

satisfies certain criteria. HUD has

implemented the ‘‘housing for older

persons’’ exemption at 24 CFR part 100,

subpart E. Specifically, § § 100.304,

100.305, 100.306, and 100.307 set forth

the requirements for housing seeking to

qualify for the 55-or-older exemption.

The purpose of this appendix is to

provide guidance to housing facilities or

communities in applying these HUD

requirements.

2. 80 Percent Occupancy

Section 100.305 provides that in order

for a housing facility or community to

qualify as 55-or-older housing, at least

80 percent of its occupied units must be

occupied by at least one person 55 years

of age or older. This occupancy

requirement must be met at the time of

any alleged violation of the Act.

Paragraph (f) of § 100.305 states that

where application of the 80 percent rule

results in a fraction of a unit, that unit

shall be considered to be included in

the units that must be occupied by at

least one person 55 years of age or older.

Example: A community or facility contains

63 occupied units. Eighty percent of 63 units

equals 50.4. Under § 100.305(d), 51 units

would require occupancy by at least one

person 55 years of age or older.

Section 100.305 also sets forth the

other requirements a housing facility or

community must follow in calculating

occupancy. The following examples

illustrate these requirements:

Example 1

Buena Vista is a condominium association

of 120 units. On September 13, 1988, twenty

(20) of the occupied units are not occupied

by at least one person 55 years of age or

older.

On April 1, 1996, Buena Vista declares

itself to be 55-or-older housing. On that date:

(1) The twenty (20) persons described

above are still residing at Buena Vista;

(2) Ten (10) units of the total 120 units are

unoccupied;

(3) One (1) of the units is occupied by the

association’s maintenance supervisor; and

(4) Two (2) units are occupied by live-in

health aides who provide reasonable

accommodations to residents with

disabilities.

How many of the occupied units must be

occupied by at least one person 55 years of

age or older in order for Buena Vista to

qualify as 55-or-older housing?

Under § 100.305(e), Buena Vista would

calculate its compliance with the 80 percent

occupancy requirement by subtracting the

following units from the total 120 units:

(1) The 20 units not occupied by at least

one person 55 years of age or older on

September 13, 1988 (See § 100.305(e)(1));

(2) The ten (10) unoccupied units (See

§ 100.305(e)(2));

(3) The one (1) unit occupied by the

maintenance person (See § 100.305(e)(3));

and

(4) The two (2) units occupied by the

health aides (See § 100.305(e)(4)).

Subtracting these 33 units from the total of

120 units leaves 87 units. At least 80 percent

of these 87 units must be occupied by at least

one person 55 years of age or older. Eighty

percent of 87 equals 69.6. Due to

§ 100.305(d), 70 units must be occupied by at

least one person 55 years of age or older.

Example 2

Topaz House is a cooperative of 100 units.

On January 20, 1996, Topaz House

announces its intent to be 55-or-older

housing and publishes policies and

procedures sufficient to satisfy § 100.306. On

that date, of the 100 total units:

(1) Sixty (60) of the occupied units are

occupied by at least one person 55 years of

age or older;

(2) Thirty (30) of the occupied units do not

have occupants 55 years of age or older; and

(3) Ten (10) units are unoccupied.

Since 60 out of the 90 occupied units are

occupied by at least one person 55 years of

age or older, the Topaz House only has 67

percent of its occupied units occupied by at

least one person 55 years of age or older.

Under § 100.305(e)(5), Topaz House may still

qualify for the 55-or-older exemption if it:

(1) Reserves all unoccupied units for

occupancy by at least one person 55 years of

age or older until at least 80 percent of the

units are occupied by at least one person who

is 55 years of age or older; and

(2) Meets the requirements of §§ 100.304,

100.305, 100.306, and 100.307.

There is no requirement that Topaz House

take any action concerning the residents

under 55 years of age who are occupying

units on the date the building declares its

intent to be 55-or-older housing.

Example 3

Snowbird City is a mobile home

community in Texas with 100 units.

Snowbird City complies with all other

requirements of 55-or-older housing, but is

uncertain of its compliance with the 80

percent occupancy rule.

Fifty out of the 100 units are occupied year

round. Of these fifty units, 12 units are not

occupied by at least one person 55 years of

age or older. Of the remaining 50 units, 5 are

unoccupied and offered for sale, and the

remaining 45 are occupied by at least one

person 55 years of age or older each winter

on a routine and reoccurring basis.

If a complaint of familial status

discrimination is filed in December, the

community meets the 80 percent occupancy

requirement because 83 out of the 95

occupied units (87 percent), are occupied by

at least one person 55 years of age or older.

If the complaint is filed in July, Snowbird

City still meets the requirement. Under

§ 100.305(b), a temporarily vacant unit is

considered occupied by a person 55 years of

age or older if:

(1) The primary occupant has resided in

the unit during the past year; and

(2) The occupant intends to return on a

periodic basis.

Example 4

The King Philip Senior Community is a

newly renovated building originally built in

1952. It has been vacant for over one year

while extensive renovations were completed.

The building contains 200 units. The King

Philip Senior Community is intended to be

operated as a 55-or-older community.

Under § 100.305(d), newly constructed

housing need not comply with the 80 percent

occupancy requirement until 25 percent of

the total units are occupied. For purposes of

§ 100.305(d), newly constructed housing

includes housing that has been unoccupied

for at least 90 days due to renovation or
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Proposed Rules 2005

rehabilitation. Accordingly, the King Philip

Senior Community need not comply with the

80 percent occupancy requirement until 50

out of its 200 units (25 percent) are occupied.

Subsequent to occupancy of the 50th unit,

however, the building will have to satisfy the

80 percent occupancy rule in order to qualify

as 55-or-older housing.

3. Intent To Operate as 55-or-Older

Housing

Section 100.306 provides that in order

for a housing facility or community to

qualify as 55-or-older housing, it must

publish and adhere to policies and

procedures that demonstrate its intent to

operate as housing for persons 55 years

of age or older. Section 100.306 also

details the factors HUD will utilize to

determine whether a housing facility or

community has met this intent

requirement. The following are

examples of housing facilities and

communities which satisfy the intent

requirement described in § 100.306:

Example 1

A mobile home park which takes the

following actions satisfies the intent

requirement:

(1) Posts a sign indicating that the park is

55-or-older housing;

(2) Includes lease provisions stating that

the park intends to operate as 55-or-older

housing; and

(3) Has provided local realtors with copies

of the lease provisions.

Example 2

An area zoned by a unit of local

government as ‘‘senior housing’’ satisfies the

intent requirement if:

(1) Zoning maps containing the ‘‘senior

housing’’ designation are available to the

public;

(2) Literature distributed by the area

describes it as ‘‘senior housing’’;

(3) The ‘‘senior housing’’ designation is

recorded in accordance with local property

recording statutes; and

(4) Zoning requirements include the 55-orolder requirement or a similar provision.

Example 3

A condominium association satisfies the

intent requirement if it has:

(1) Adopted, through its rules and

regulations, restrictions on the occupancy of

units consistent with HUD’s regulations

governing 55-or-older housing at 24 CFR part

100, subpart E;

(2) Has distributed copies of the rules to all

occupants; and

(3) Has notified local realtors of the

restrictions.

The following is an example of a housing

facility which has failed to satisfy the intent

requirement described in § 100.306:

Example 4

A homeowners association has failed to

meet the intent requirement if it has

Covenants, Conditions and Restrictions

which refer to an ‘‘adult community,’’ has

posted a sign stating ‘‘A 40 and over

community’’ and has restricted visiting

children to a maximum of two weeks, but

contains no similar restriction for visiting

adults.

4. Verification of Occupancy

Section 100.307 provides that in order

for a housing facility or community to

qualify as 55-or-older housing, it must

be able to produce, in response to a

complaint alleging a violation of the

Act, verification of compliance with

§ 100.305 through reliable surveys and

affidavits. Paragraph (d)(7) of § 100.307

includes self-certifications in a list of

documents considered reliable

documentation of the age of occupants.

The self-certification may be included

in a lease or other document, and must

be signed by an adult member of the

household asserting that at least one

person in the unit is 55 years of age or

older. The following examples provide

acceptable self-certification provisions:

Example 1

All new leases, new purchase agreements,

or new applications contain a provision

directly above the signatory line for lessees,

asserting that at least one occupant of the

dwelling will be 55 years of age or older. In

addition, the community surveys all current

residents for their occupancy status in

compliance with the 55-or-older

requirements.

Example 2. Sample certification

I, (name), am over the age of 18 and a

member of the household that resides at

(housing facility or community), (unit

number or designation). I hereby certify that

I have personal knowledge of the ages of the

occupants of this household and that at least

one occupant is 55 years of age or older.

Paragraph (e) of § 100.307 requires

that the housing facility or community

establish appropriate policies to require

that all occupants comply with the age

verification procedures. The following

examples illustrate acceptable policies:

Example 1

A condominium association establishes a

rule that the board of directors must approve

all new occupants. One criteria for approval

is that new occupants of each unit inform the

condominium association whether at least

one person occupying the unit is 55 years of

age or older.

Example 2

A homeowners association amends its

Covenants, Conditions and Restrictions, and

records them at the appropriate government

recording office. The amendments require

applicants to state whether at least one

occupant is 55 years of age or older.

Example 3

The owner of a mobile home park where

the residents own the coach but rent the land

requires a statement of whether at least one

occupant is 55 years of age or older before

any sublease or new rental.

5. Future Revisions to This Appendix

HUD may update or revise this

appendix as necessary.

[FR Doc. 97–840 Filed 1–13–97; 8:45 am]

BILLING CODE 4210–28–P