24 Cfr Part 100 - Implementation Of The Housing For Older Persons Act Of 1995; Final Rule - U.s. Department Of Housing And Urban Development Page 4
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Federal Register / Vol. 64, No. 63 / Friday, April 2, 1999 / Rules and Regulations
no senior residents to declare
those communities seeking to meet the
more. It would be unjust to deny such
themselves housing for persons who are
80% requirement have at least 80% of
housing qualification for the exemption
55 years of age or older housing and
their occupied units occupied by at least
when it meets the intent requirement in
discriminate against families with
one person who is 55 years of age or
all other ways as well as meeting the
children until they reach the 80% senior
older by the expiration of the period in
other requirements for the exemption
order to qualify for the exemption.
occupancy minimum.
and has done what it can to eliminate
A transition provision was first
Vacant units reserved for occupancy by
language inconsistent with the
adopted in the August 18, 1995 final
persons who are 55 of age or older may
exemption for housing for persons 55
not be counted in achieving this
rule which was implemented prior to
years of age or older. HUD notes,
standard. The transition provision may
the passage of HOPA, but the entire
however, that in circumstances where
not be facilitated by evicting or
final rule was withdrawn in April 1996
the community holds itself out as
terminating the leases of resident
after Congress passed HOPA. The intent
‘‘adult’’ and its legal documents
households with minor children.
of the original transition provision was
describe occupancy in terms which are
The transition provision will expire at
to provide a mechanism to return to
not consistent with the 55-and-older
the end of one year from the effective
senior status for those former senior
exemption and no action has been taken
date of this regulation. A community or
communities who had abandoned, or
to attempt to change the applicable
facility which attempts to meet the
did not achieve, senior status for fear of
documents, the requisite intent
exemption during the transition period,
law suits spawned by the pre-HOPA
requirement is not met.
unsuccessfully, must cease reserving
interpretations of the exemption,
Other commenters have interpreted
vacant units for persons who are 55
especially the requirement that
this provision as sanctioning senior
years of age or older at the end of that
significant facilities and services be
housing under federal law when state
period. Even if a facility or community
provided, or for other reasons which
and local law prohibits or restricts the
fails to meet the exemption during this
Congress found were contrary to the
establishment of senior housing in the
transition period, it will not be liable for
original intent of the exemption. As it
particular circumstances of that
discrimination on the basis of familial
has done in the past, HUD is
community. HUD has always allowed
status resulting from actions taken
promulgating a transition provision
state or local laws which impose
during the one year period if it complies
under the authority of 42 U.S.C. 3607.
requirements in addition to, but not
with all of the transition requirements
As HUD noted in its comments to the
inconsistent with, those in the Act to
during that time.
previous final rule, published on August
apply. Moreover, to the extent that state
The NCFHC further objects to
18, 1995:
or local law interpretations require
§ 100.305(c)(2) which references
additional or different standards, the
The Act provides that a property ‘‘shall not
‘‘temporarily vacant’’ dwellings. This
Act’s provisions must still be met to
fail to meet the requirements for housing for
provision is in response to the situation
qualify for the exemption. HUD urges
older persons by reason of * * * (B)
where individuals move into ‘‘senior
unoccupied units * * * ’’ 42 U.S.C. 3607.
senior communities to consult state or
parks’’ as summer or winter homes
HUD believes it is justified in interpreting the
local units of government to ensure that
while others in the community remain
Act to allow a community which, although
the housing community is also in
year round. NCFHC argues that only
it does not currently meet the 80 percent
compliance with all applicable state and
‘‘primary residences’’ should be
occupancy requirement, to reserve all
local requirements governing senior
covered. There is no support in the
unoccupied units for occupancy by a person
housing.
55 years of age or older. This may be the only
Congressional history or in HOPA for
Several commenters addressed
way for a community which believed that it
this interpretation. HUD has held that a
was ineligible for ‘‘housing for older
specific actions of communities
‘‘dwelling’’ under the Act can cover
persons’’ status, and which has therefore
purporting to be senior housing. These
summer homes or even timeshare units.
permitted occupancy by families, to qualify
include such matters as requirements
There is no reason to make a distinction
for the exemption.
that occupants join a homeowners
for senior housing. A unit which is
HUD is concerned, however, that an
association (HOA) or whether a
occupied, even if temporarily vacant
overly broad transition provision may
community must allow an under-aged
while its residents are absent seasonally,
allow qualification for communities
heir to reside in the community or the
on vacation, or hospitalized, for
beyond those which temporarily were
grandchild of a resident. None of these
example, is still occupied by that
unable to qualify for the exemption
matters are directly affected by the rule.
resident. If, on the other hand, a unit is
because of the significant facilities and
These types of issues are governed by
leased by its owners during their
services provision or other
private contractual agreements and local
absence, its current occupants, not its
interpretations of the exemption, and
laws and practice. If there is no
owners, are considered for purposes of
which would otherwise have been
independent law, deed restriction or
the exemption.
eligible for the exemption. For that
other legally enforceable requirement
The fair housing advocates and
reason, HUD has retained the transition
that an individual join a HOA, it is not
several attorneys further objected to
provision, but only for a period of one
§ 100.306(c) which addresses the effect
required by HOPA. Additionally,
year from the date on which this
of language in housing documents on
although HOPA would allow under-
regulation becomes final, to allow
the intent requirement. HUD has
aged heirs, or minors under the age of
communities which wish to qualify for
consistently held that intent is
18 years of age to reside in, or visit,
the 55-and-older exemption to qualify.
established by the totality of the facts.
housing for persons who are 55 years of
At the end of the one year period, the
HUD is also aware that prior to the
age or older, it does not require it. HUD
transition period will expire. HUD
adoption of protection for families with
philosophically supports a
believes that this is a more balanced
children in the Fair Housing
compassionate community which has
approach that achieves a common sense
Amendments Act, housing communities
provisions allowing some flexibility
solution to a problem with equities on
and facilities had established senior
where the exemption would not be
both sides. This represents the most
housing at an age other than 55 with a
destroyed by that flexibility, but there is
significant change in the rule. The one
prohibition against amending the
no direct legal authority under the Act
year limitation period will require that
covenants for a period of 25 years or
to require it.
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