The original exemption for 55 Plus housing required that (1) not less than 80% of the occupied housing units in the development had to have at least one resident who was 55 years of age or older, (2) the housing provider had to publish and adhere to policies and procedures designed to demonstrate an intent to provide housing for older persons, and (3) the housing provider had to provide significant facilities and services designed to meet the physical or social needs of older persons. HUD adopted proposed regulations on July 7, 1994, and March 14, 1995, and adopted final regulations on August 18, 1995, in each case dealing with what was meant by "significant facilities and services."

HUD received over 15.000 comments on the July 7, 1994, proposed rule. In late l995, Congress adopted the Housing for Older Persons Act of 1995 ('HOPA') which amended the provisions of the Fair Housing Act by deleting the requirement that 55 Plus housing have "significant facilities and services" and by adding a requirement that 55 Plus housing comply with rules issued by the Secretary of HUD for verification of occupancy. As amended by HOPA, 42 U.S.C. §3607(b)(2)(C), states that housing for older persons is 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;

(iii) the housing facility or community complies with rules issued by the Secretary 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."

As required by HOPA, HUD issued its rule on April 2, 1999 (the 'HOPA Rule').

Pursuant to HOPA and the newly issued HOPA Rule, there are three requirements to qualify for the exemption for 55 Plus housing: (1) at least 80% of the occupied units must be occupied by at least one person who is 55 years of age or older; (2) the association must publish and adhere to policies and procedures that demonstrate an intent to qualify for the exemption; and (3) the association must comply with age verification rules adopted by HUD.

What HUD did not address with any detail is how a facility can do whatever it wants with the 20% and still demonstrate the required intent to provide housing for older persons. HUD has stated that the ways a facility demonstrates that intent includes how it describes itself to prospective residents and how it advertises to attract new residents, as-well as whether it has adopted and follows rules end procedures consistent with providing housing for older persons.

It appears that the safest approach will be to establish policies and procedures with respect to the circumstances under which exceptions to the general rule requiring at least one occupant to be 55 years of age or older will be granted, but to provide that all advertising, brochures or literature, Internet web sites, or similar materials continue to state that the facility is a 55 plus community.

As required by HOPA, the HOPA Rule includes age verification requirements. In the event of a complaint, the facility must be able to produce verification of the age requirements through reliable surveys and affidavits. By October 31, 1999, a facility must "... 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." The HOPA Rule permits the initial verification to take place in connection with normal purchasing or leasing transactions.

The HOPA Rule provides a list of documents that are considered reliable for age verification, including drivers licenses, birth certificates, passports and similar documentation. An occupant may also provide so-called self-certification by providing age certification on application, lease or affidavit.

These procedures must also include provisions for updates of the initial information furnished by the occupants at least once every two years. The updates may be done through surveys or other means.

The HOPA Rule also includes a new "good faith" defense to protect against civil money damages in the event of an age discrimination action. This defense is not available to associations, but only to natural persons who have received a certification, under oath, from an authorized representative of the facility, that the facility complies with the requirements for housing for older persons.

In summary, a condominium or planned community association that wishes to maintain its status as a provider of 'housing for older persons' under the Fair Housing Act Amendments, HOPA and the HOPA Rule should (1) communicate to its residents and prospective residents that it is to be a 55 Plus community, (2) adopt policies that demonstrate its intention to provide housing for older persons, including, for example, hardship exceptions to the age rules, (3) consistently apply and enforce the policies adopted, (4) verify that not less than 80% of the housing units have at least one resident 55 years of age or older at the time of occupancy, and, update the occupancy information on a regular basis, not less than every two years, by survey or other means. It is not possible to generalize about the type of survey or other actions which may be necessary to update the age verification information, since each community is unique.

Dyekman, Curtis,

Cohen & Karow, P.L.C.

 6750 East Camelback Road

Suite 104

Scottsdale, Arizona 85251 (602) 481-0202

(6o2) 481-0555 (Fax)