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January 2, 1994 MEMORANDUM TO CLIENTS
ACCIDENTAL OR INADVERTENT AGE DISCRIMINATION MAY RESULT IN LIABILITY Many communities believe they qualify for the "older-aged community" exemption under the Fair Housing Act. This legislative exemption allows communities whose residents are generally fifty-five years of age or older to discriminate against and prohibit younger families residencies. However, many associations unknowingly fail to meet all three statutory tests for the exemption. The three statutory tests are: (i) significant facilities and services for older persons physical and social needs; (ii) that at least eighty percent of the units be occupied by persons fifty-five years of age or older; and, (iii) the publication and adherence to policies and procedures demonstrating an intent to provide housing for persons fifty-five years of age or older. It appears that with the passage of time a growing number of associations are failing the third requirement, adequately publishing and adhering to policies and procedures which demonstrate an intent to provide housing only for persons fifty-five years of age and older. The United States Court of Appeals for the Eleventh Circuit recently held in Massaro v. Mainlands Section 1 & 2 Civic Association, Inc. that the Mainlands Association failed to meet the third statutory requirement concerning policies and procedures. The Eleventh Circuit Court of Appeals includes all of the State of Florida in its jurisdiction concerning appeals of federal law. In ruling against the Mainlands Association, the Appellate Court held that the Fair Housing Act exemption must be narrowly construed. An association merely instituting a rule requiring occupants to be fifty-five years of age or older is not sufficient for an compliance with the law requiring an association to establish an intent to provide housing only for older persons. Communities desiring to meet the statutory exemption by establishing an intent to provide housing for older persons must at a minimum meet six regulatory factors concerning policies and procedures. The Secretary of Housing and Urban Development issued the factors to clarify the law. The six factors are as follows:
As announced by the Massaro Court, after considering the clear language of the law, these six factors are the primary criteria used by the courts in determining whether there is a violation of the Fair Housing Act. In Massaro the Mainlands Association failed to enforce and adhere to policies and procedures which indicated an intent to provide housing for occupants fifty-five years of age or older. The Association also failed to implement and follow specific procedures to either independently verify the age of the community's residents or to ensure that potential owners and residents meet the age requirements. As a result, the Court held that the community did not meet the statutory requirements for an older persons community. Though the Mainlands Association conducted two community censuses, the Association did not obtain proof of residents ages as required by the regulations. In addition, the Association's welcoming committee did not meet with a new resident until after the resident moved into the complex. The welcoming committee had no power to enforce an age restriction and could not require new residents to meet with them. Before associations begin to prohibit occupancy of any person based on age or familial status, the association's directors should carefully structure the association's policies and procedures to ensure legal compliance. Associations should take care to ensure proper age verification procedures are implemented and are followed. Though seeking age verification may be awkward, the effort may be painless when made part of an established application process. Independent proof of residents' age should be obtained. Several H.U.D. administrative decisions indicate that photocopies of birth certificates and drivers licenses are acceptable age verification methods. Passports may also be acceptable to regulators. Inattention and a blind eye will not meet the stern tests of either administrative review or judicial examination. If an association seeks an older persons exception, then to avoid administrative fines and civil penalties associations and their directors are urged to review their age verification procedures. Based upon the Massaro decision, associations who seek to qualify for the fifty-five year older persons exception should carefully document their residents ages, and their efforts to obtain correct information. QUESTIONS & ANSWERS
The Condominium Act and the Cooperative Act require condominium and cooperative associations to annually update their "Questions & Answers Sheet." The associations are required to have the sheets available to provide accurate information to prospective purchasers and lessees. Failure to provide the Questions & Answers Sheet within five days of a request may not only subject an association to an administrative penalty, but the association may also be liable to a seller and purchaser or lessee for not promptly providing correct information. Because most condominium and cooperative associations have changed their assessments and some regulations in the last twelve months these associations should revise their Questions & Answers Sheet without delay.
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