October 19, 2010

Court Rules that Association’s 55-Plus Age Restriction Violates the Fair Housing Act

Since its beginning in 1953, the Ryderwood community in Cowlitz County, Washington was intended to be used and enjoyed primarily by persons who receive a pension or retirement annuity. Each home’s deed limited ownership based on that purpose. The Ryderwood homeowners’ association later amended its bylaws to require that anyone owning, purchasing, or occupying a home there must be at least 55 years old, except for a spouse of someone over 55 years old. However, several homeowners recently sued the association to allow them to market their homes to persons of all ages, and in August a federal judge ruled in their favor. This decision is now being appealed by the association as an intense struggle over the future character of this community continues to unfold.

The federal Fair Housing Act (“FHA”) prohibits condominium and homeowners associations from discriminating against families with children. The key issue in the Ryderwood case was whether the association qualified for the Housing for Older Persons Act (“HOPA”) exception to the FHA prohibition. The judge decided that it did not. In order to qualify for the HOPA exception, an association must meet the following requirements:

1. The community must be intended and operated for occupancy by persons 55 years and older;

2. 80% of occupied units must have at least one person who is 55+;

3. The community must consistently publish and adhere to policies and procedures that demonstrate the above intent; and

4. The community must comply with federal regulations for verification of the above requirements, such as submitting surveys, affidavits, written policies and advertising examples.

If an association wants to convert into a 55-plus community, it must first achieve the 80% requirement without discriminating against families with children. If you are on the board of a 55-plus community or want to convert your community into one, an experienced community association attorney can help you understand and comply with FHA requirements and the HOPA exception.