`[Federal Register Volume 62, Number 9 (Tuesday, January 14, 1997)]
[Proposed Rules]
[Pages 2000-2005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-840]


      

[[Page 1999]]

_______________________________________________________________________

Part IV





Department of Housing and Urban Development





_______________________________________________________________________



24 CFR Part 100



Implementation of the Housing for Older Persons Act of 1995; Proposed 
Rule

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

[[Page 2000]]



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-
or-older 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-or-older 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.
---------------------------------------------------------------------------

    \1\ A subsequent technical correction was published on April 25, 
1996 (61 FR 18248).

---------------------------------------------------------------------------

[[Page 2001]]

    This rule proposes to revise Sec. 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 Sec. 100.305, 
which would update the 80 percent occupancy requirements. A new 
Sec. 100.306 would describe how a facility or community may establish 
its intent to operate as 55-or-older housing. New Sec. 100.307 would 
set forth the necessary procedures for verification of the 80 percent 
occupancy requirements. Finally, a new Sec. 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 Sec. 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 
Secs. 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, Sec. 100.307 would require 
that an occupant of 55-or-older 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, Sec. 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:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                  Proposed section of 24 CFR   Number of                                Est. avg. response time                         
       Type of collection                  affected           respondents     Frequency of response              (hrs.)             Annual burden hrs.  
--------------------------------------------------------------------------------------------------------------------------------------------------------
Publication of policies          24 CFR 100.306                     1,000  1..........................  2 hrs..................                    2,000
 demonstrating intent to                                                                                                                                
 operate as 55-or-older housing.                                                                                                                        
Data on the age of occupants in  24 CFR 100.307                    10,000  1..........................  .1 hrs.................                    1,000
 55-or-older housing.                                                                                                                                   
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

[[Page 2002]]

    (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-or-older'' 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 Sec. 100.304; and by adding 
Sec. Sec. 100.305, 100.306, 100.307, and 100.308, to read as follows:

Subpart E--Housing for Older Persons


Sec. 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.


Sec. 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

[[Page 2003]]

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 re-occupancy 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 
Sec. 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 Sec. Sec. 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.


Sec. 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.


Sec. 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 
Sec. 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 Sec. 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.


Sec. 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-or-older housing.

[[Page 2004]]

    (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, 
Sec. Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 100.305(e)(1));
    (2) The ten (10) unoccupied units (See Sec. 100.305(e)(2));
    (3) The one (1) unit occupied by the maintenance person (See 
Sec. 100.305(e)(3)); and
    (4) The two (2) units occupied by the health aides (See 
Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Secs. 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 
Sec. 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 Sec. 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 Sec. 100.305(d), newly 
constructed housing includes housing that has been unoccupied for at 
least 90 days due to renovation or

[[Page 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 Sec. 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-or-older 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 Sec. 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 Sec. 100.305 through reliable surveys 
and affidavits. Paragraph (d)(7) of Sec. 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 Sec. 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`