Beware: HUD’s HOPA Exception Is Not an Invitation to Market to Under-55 Renters

Senior housing rule: 80% of units must be senior-occupied, 20% must meet ‘intent’ clause

Senior housing

Anyone who owns, manages, or advertisers a market-rate property as a “senior community” should be familiar with the HUD’s Housing for Older Persons Act (HOPA). This law dates to the 1980s and offers exceptions to the Federal Fair Housing Act protections for familial status.

Maintaining your property’s qualification and compliance with HOPA is critical if you’re going to stay out of legal trouble, warns fair housing expert Jo Becker. In her AudioSolutionz webinar “Designated Senior Housing: Do You Qualify?” she explains how the exceptions are defined and how to steer clear of common violations.

Keep Numbers Up to Keep Age-Restricted Status

Background: The Fair Housing Act of 1968 prohibited a broad range of activities that could discriminate against individuals on the basis of race, color, religion, sex, national origin, and disability, and applied to municipalities and other local governments.

In 1988, the Fair Housing Act was amended to prohibit discrimination based on disability or family status, with a focus on children and pregnant women. This, however, conflicted with the operation of retirement/adult communities, so the amended law included exceptions for housing developments aimed at persons over 55.

Then, in 1995, Congress passed HOPA in an effort to resolve the conflict between protected family status and the exemption for older persons. Its provisions say that the housing property must:

  • Be intended for occupancy for persons 55 and older, and
  • Have 80 percent of the units occupied by at least one person who is 55 or older.

Important: HUD’s HOPA exception says that if the number of people aged 55-plus in the community falls below 80 percent, the community could lose its age-restricted status.

Workaround: Most communities limit stays by those under 55 to a set period, such as 90 days per year, and say that any resident under 55 must live in a household where at least one occupant is 55 or older.

Be Clear About Your Senior-Community ‘Intent’

While HOPA says that 80 percent of a senior community’s units must be occupied by a person who is 55 or older, that does not mean the remaining 20 percent can go to people of any age. The law requires that senior housing communities have policies that demonstrate their intent to be a spot for the 55-plus set.

One solution: “Rather than set specific age rules, what some communities have done is allow 20 percent of the units to be occupied by persons who do not otherwise satisfy the community’s minimum age requirements,” writes Spokane, Wash.-based real estate pro Tom Kelly in an article for the The Spokesman-Review. “When called into question about dropping below stated age guidelines, builders, developers and housing officials have relied on the all-encompassing ‘intent’ provision, which has come to the rescue in more than a few communities.”

Developers can also claim that they did not deliberately allow more underage occupants into the community than the threshold permits, Kelly notes.

Another solution: Some communities, however, have taken the 80/20-split challenge as a novel approach to intergenerational living while still meeting the intent of the law, notes myLifeSite. For example, one housing project in Ohio allowed college students to live rent free in exchange for performing service projects in the community.

Important: myLifeSite also notes that, while HOPA rules do allow discrimination based on age, they do not allow any other sort of discrimination: Housing cannot be denied by factors such as race, religion, or disability.

Other questions about the HOPA exception are answered by HUD here.

The HOPA exception, says Becker in her webinar, “Designated Senior Housing: Do You Qualify?” is ultimately a tool to be used cautiously—make sure you fully understand it before diving in. If you’re not crystal clear on what’s allowed (and not), you’re putting your property in legal jeopardy.

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Jeff Schmerker
About Jeff Schmerker
Jeff has extensive professional experience writing on a variety of topics, from pharmaceutical research to environmental history. He has published more than a half-dozen books, and he has worked as a newspaper reporter, magazine editor and restaurant reviewer. He lives in Missoula, Montana with his wife and son.