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 6
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Federal Register / Vol. 64, No. 63 / Friday, April 2, 1999 / Rules and Regulations
instead deals with ‘‘census tracts’’ and
There were three comments
of ‘‘good faith’’ requires actual
is often outdated. This is a
concerning the ‘‘good faith reliance’’
knowledge that the community had
misunderstanding of HUD’s view. HUD
exemption from monetary damages. The
certified in writing that it was housing
was not referring to the United States
first questioned whether the exemption
for persons who are 55 years of age or
Decennial Census for verification of
covered just housing for persons who
older. A review of the language of the
are 55 years of age or older or all senior
occupancy. The reference is to
Committee report indicates that the
housing exemptions. A review of the
household censuses which are
eligibility for the claim of ‘‘good faith’’
language of HOPA indicates the
conducted by many cities and towns.
relies on the fact that the facility or
language is applicable whenever the
The language has been clarified.
community ‘‘has certified to that person,
housing for older persons exemption
in writing and on oath or affirmation,
Some commenters objected to the ‘‘re-
may be claimed. The language has been
that it complies with the requirements’’
survey’’ of the park every two years as
adjusted accordingly. The second
for the exemption. (House Report 104–
being unduly burdensome, especially if
comment concerned whether the term
91 at 10) Therefore, actual knowledge of
the list is actively updated on an on-
‘‘person’’ covered only ‘‘natural
the certification is required. Other: It
going basis. While HUD is sympathetic
persons’’ or whether it included
has become clear that there is confusion
to those well-managed communities
business and corporate entities. HUD
about the extent to which the provisions
which actively update lists of residents,
believes Congress intended the ‘‘good
of the Fair Housing Act relating to the
it does not feel that such communities
faith reliance defense’’ to be applicable
housing for older persons exemptions
would be unduly burdened by the
only to natural persons. The legislative
affect statutory eligibility requirements
update since the information required
history of the provision indicates that
for participation in federally funded
will be readily available in the files.
Congress intended to protect individual
housing programs. Neither HOPA nor
HUD’s experience in this area gives it
persons, such as individual members of
the Act change the definition of ‘‘elderly
reason to believe that if surveys are not
boards of governing homeowners
family’’ which mandates that a family
required to be updated periodically the
associations and real estate agents
include the situation where the head,
quality of the recordkeeping will
relying on information provided to them
spouse or sole member is age 62 or
deteriorate and create the opportunity
by operators of senior communities, in
older. Neither HOPA nor the Act permit
for the excessive litigation Congress
enacting this provision. House Report
a HUD-funded public housing provider
sought to prevent. The re-survey does
104–91, at 10, describes this portion of
to designate a project as being for the
not require that all supporting
the amendment as being designed to
elderly without HUD review and
documents be collected again—only that
allow a person engaged in the business
approval, even if the project would meet
the community confirm that those
of residential real estate to show ‘‘good
the housing for older persons exemption
persons counted as occupying dwellings
faith reliance’’ unless the person has
under the Act. Similarly, HUD-funded
for purposes of meeting the 80%
actual knowledge that a facility or
housing which is designated for the
requirement are, in fact, still in
community is not eligible for the
elderly may not admit households
occupancy.
exemption and describes individual real
which are not statutorily eligible for the
There were objections to making
estate agents as requiring protection in
housing (such as limiting admissions to
public information contained in an age
this area. This language indicates that it
those who are 55 years of age or older
survey for fear that confidential
is natural persons which Congress
rather than the near elderly). Finally, no
information may be obtained by
wished to protect from damages awards
public housing development funded by
someone attempting to prey on seniors.
in these circumstances.
HUD may exclude families with
HUD believes that this is a
To the extent that this interpretation
children, even if at least 80% of the
misinterpretation of the requirement.
may cause concern for corporate
units are occupied by at least one
Only the overall survey summary is
publishers which may accept a notice
person who is 55 years of age or older.
required to be available for review, not
describing a facility or community as
the supporting documentation. The
senior housing based on the
II. Findings and Certifications
word ‘‘summary’’ has been added to this
representations of others and without
Executive Order 12866
section.
personal knowledge of the actual
Some commenters felt that any
This rule was reviewed by the Office
qualifications for eligibility, HUD has
affidavit should be signed under the
of Management and Budget (OMB)
already interpreted section 804(c) of the
penalty of perjury to ensure the integrity
under Executive Order 12866 on
Act to exclude from liability those
of the process. Communities which are
Regulatory Planning and Review, issued
entities which publish advertisements
concerned about misrepresentation of
by the President on September 30, 1993.
regarding senior housing in good faith
the age of occupants are free to require
OMB determined that this final rule is
reliance on the assertions of others. To
that affidavits from occupants about the
a ‘‘significant regulatory action,’’ as
the extent that there is further
ages of persons in their households be
publication based on a natural person’s
defined in section 3(f) of the Order
signed under the penalty of perjury, just
good faith reliance on a certification of
(although not economically significant,
as they are free, consistent with state or
eligibility for an exemption, HUD
as provided in section 3(f)(1) of the
local law, to require that applications,
Order). Any changes made in the rule
foresees no grounds for further liability.
leases, and other admission documents
In other words, where the source of the
subsequent to its submission to OMB
be signed under oath, or under penalty
information is a natural person who has
are identified in the docket file, which
of perjury. Statements from third party
the written certification described in the
is available for public inspection as
individuals who have personal
final regulation and further publication
provided under the section of this
knowledge of the age of the occupants
is based on that information, in the
preamble entitled
.
ADDRESS
and setting forth the basis for such
absence of actual knowledge that a
Environmental Impact
knowledge may be used when
particular community or facility is not
occupants decline to provide
In accordance with 24 CFR 50.19(c)(3)
eligible for the exemption, there is no
information verifying age, but such
of the Department’s regulations
liability for that publication.
statements must be made under penalty
The third issue identified by
published in a final rule on September
of perjury.
commenters deals with whether a claim
27, 1996 (61 FR 50914), the policy set
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