I have written about the intersection between familial status and housing for older persons before. Added to the protected classes in the Fair Housing Act (FHA) in 1988, “familial status” means that families with children (or families in the process of adopting or women who are pregnant) cannot be discriminated against with respect to housing. There is, however, an exception in the law related to housing for older persons. A case settled just last week warns what can happen if a city and/or housing developer wants to build housing for older persons, but does not follow all of the appropriate steps in the law.

In an action filed in November 2011, the Department of Justice (DOJ) alleged that the city of Santa Rosa, California and a homeowners association unlawfully sought to restrict residency at a housing development to those age 55 and older which, as such, discriminates against families with children. As noted above, while the FHA allows an exemption for senior housing, the lawsuit alleged that neither the city nor the homeowners’ association took the steps, such as routine age-verification, necessary to qualify for the FHA exemption. 

This case started with a complaint before the Department of Housing and Urban Development (HUD) by the owner and representative of the development that was the subject of an enforcement action.  After HUD investigated the complaint, it issued a charge of discrimination and the matter was referred to the DOJ.

Pursuant to the terms of the proposed deal (which still must be approved by a federal judge), the city will not force the housing development to exclude families with children, and will waive the estimated $12,500 in costs associated with any zoning changes that may be necessary to bring the city’s regulation of the property into compliance with federal law.   Additionally, when the city, permits a developer to operate senior housing, it will, among other things, designate the age restriction of the zoned property in its ordinances and zoning maps, and require that property owners for these developments submit biennial age verifications for the city’s review and certification.    

The development is also prohibited from excluding families with children from the community unless it affirmatively elects to become an age-restricted community for persons 55 years of age or older and conforms to the requirements of the FHA. Under the law, to qualify as housing for older persons, at least 80 percent of the occupied units must have at least one person who is 55 years old.  Management must also ensure there are proper age verification procedures in place.   As a part of the proposed settlement, the homeowners’ association will provide compensatory damages to certain aggrieved persons by providing set-offs to amounts claimed it was owed.

Finally, the settlement requires the defendants to take fair housing training and mandates the defendants pay $5,000 each to the United States as a civil penalty.

The message from this case is that there indeed is a way to provide housing for older persons – but you must comply with the steps as outlined in the FHA to confirm you are not discriminating against families with children.

Just A Thought.