The firm's December 1995 Memorandum to Clients pointed out serious flaws in the laws and regulations concerning what is a "significant facility" or a "significant service" intended for housing for older aged persons. Providing significant facilities and services for older aged persons was a prerequisite for communities seeking exemptions from the prohibitions against housing discrimination on the basis of age and familial status. The flaws in the law and regulations created practical, legal dangers for associations and landowners seeking the exemption.

While the firm would like to take credit for positive change, it appears that the Federal government has beat us to the punch. Despite the complaints about Congress, the Administration and government in general, and the "shut-down", something seemed to worked just right last month. Congress passed, and the President signed into law the Housing of Older Persons Act of 1995.

The 1995 Act is one of the most significant pieces of housing legislation, at least for south Florida associations, since the Federal Fair Housing Amendments Act of 1988. The 1988 Act instituted the prohibition of housing discrimination on the basis of familial status. The 1988 Act's practical impact was to outlaw age restrictions except in communities whose population was almost entirely older aged.

The most frustrating part of the 1988 Act for most older aged communities was the requirement that an age restricted community have "significant facilities and services" for older aged persons. These frustrations lead to last year's H.U.D. regulations. Nevertheless, even after the new regulations some communities did not have sufficient space for new facilities. Other communities did not have enough money to create or maintain the mandated facilities and services. Communities attempting to use the regulation self-certification process found that they still had a difficulty attempting to honestly comply with the law. Worse still, an individual director who may inadvertently or incorrectly certified compliance with the law and the availability of facilities and services could have been held criminally liable for violation.

The 1995 Act simply eliminates the significant facilities and services requirement. With a flick of a pen, the frustration should be over for most communities. The language that was there is now deleted. It is noted that the prohibition of other types of impermissible housing discrimination, such as based upon race, religion, national origin, and handicap, continues.

The 1995 Act, codified as 42 U.S.C. 3607, now provides three criteria for communities seeking to exempt themselves from the law prohibiting discrimination on the basis of familial status. Specifically, Section "2" of the law, codified in §3607(b)(2)(C) provides that housing seeking to be exempt must be:

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;

ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and

iii) the housing facility or community complies with rules issued by the Secretary for certification 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.

Thus, there does not appear to be an immediate need for self-certification; however, for directors to take advantage of a protection against personal liability, self-certification may be recommended.

Self certification is dealt with in Section "3" of the law. Personal liability for monetary claims may be avoided if the certifying person acted in good faith. "Good faith" is defined as:

(i) such person has no actual knowledge that the facility or community is not, or will not be eligible for such exemptions; and,

(ii) the facility or community has stated formally, in writing, that the facility or community complies with the requirements for such exemption.

Thus, those who seek to enforce age restrictions may feel more comfortable as a result of the new law; however, this comfort level relies upon a certificate that the officer and director believes is proper.

It is noted that the 1995 Act does not effect local or state laws. The State of Florida and certain localities, such as Palm Beach County, have adopted fair housing laws and ordinances that parallel the 1988 Act, generally prohibiting housing discrimination based upon familial status. The Palm Beach County Ordinance for Equal Opportunity to Housing and Places of Public Accommodation, amended by Ordinance 90-1, creates a "safe harbor", exempting from enforcement housing that qualifies as "housing for older persons", even without significant facilities or services. On the other hand, Florida Fair Housing Act, while providing an exemption for in §760.23(2) Fla. Stat. (1995) still requires most older persons housing to have significant facilities and services.