Housing for Older Persons Act Survey
The "HOPA Survey" page on the Board Synergy Club's website outlines the requirements for maintaining compliance with the Housing for Older Persons Act (HOPA). HOPA mandates that communities aiming for "55 or older" status must ensure that at least 80% of their occupied units house at least one person aged 55 or above. To verify this, associations are required to conduct age verification surveys of their residents every two years. These surveys should collect reliable age verification documents, such as birth certificates or driver's licenses, to substantiate compliance. Failure to perform these biennial surveys can jeopardize the community's status as housing for older persons. The page also provides links to relevant forms and additional resources to assist associations in fulfilling these obligations.
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The Housing for Older Persons Act (HOPA), signed into law by President Clinton on December 28, 1995, amended the housing for older persons exemption against familial status discrimination. The HOPA modified the statutory definition of housing for older persons as housing intended and operated for occupancy by at least one person 55 years of age or older per unit. It eliminated the requirement that housing for older persons have significant services and facilities specifically designed for its elderly residents. It required that facilities or communities claiming the exemption establish age verification procedures. It established a good faith reliance defense or exemption against monetary damages for persons who illegally act in good faith to exclude children based on a legitimate belief that the housing facility or community was entitled to the exemption.
Effective July 1, 2020, the Florida legislature eliminated the requirement for 55+ communities to register with the Florida Commission on Human Relations (“FCHR”), and eliminated the need to submit a letter to the FCHR every two years stating that the association complies with the requirements to be considered housing for older persons under state and federal law. However, that did not eliminate the other requirements a 55+ community must comply with to maintain its 55+ status, including the need to conduct a survey of residents every two (2) years as further noted below.
Century Village is an “Age Restricted” community, this status limits who may reside in the community. The key word is “reside” as there is nothing to stop someone under the age of fifty-five (55) from purchasing in your association. But another issue that has become more common in recent years is residents under aged residing in units.
You may be aware that your Association Documents restrict anyone under the age of eighteen (18) from ever residing in units. Those under the age of eighteen will always be considered “guests” and will be held to the guest restrictions of your governing documents. Most of the Associations in Century Village restrict that no guest may stay overnight in a unit more than thirty (30) days per calendar year, otherwise they will be considered residents.
An exception to the age restriction often falls on the caveat that your governing documents require that only a single resident be over the age of fifty-five, and so long as the other resident is over the age of eighteen, they may reside in the unit.
Where the 80/20 rule comes into effect is to allow residents under the age of fifty-five to reside in a unit and still maintain your associations “age-restricted” status. Should your Association have someone residing in a unit with another who is of-age while they are “underaged” and of-age person passes, you are not obligated to force that underaged person to leave the property.
You must protect your “age restricted” for various reasons, the most important being to maintain a civil expectation among the residents, and your tax filing.
For more information, consider reading the following articles.
https://www.sweeneylawpa.com/floridas-55-and-older-communities-and-the-80-20-rule/
To maintain its 55+ status, the Florida Commission on Human Relations (“FCHR”) requires a 55+ community to conduct a survey of residents every two (2) years.
The form to submit to the Florida Commission on Human Relations can be viewed here.
A Q&A list from the Florida Commission on Human Relations can be viewed here.
Q. How many days after the effective date of the final rule implementing HOPA does a facility/community have to develop routine procedures for determining the occupancy of each unit, including age verification?
A. The housing community/facility has 180 days after the effective date of the rule, May 3, 1999, to develop the appropriate procedures that should constitute a part of its normal leasing and purchasing procedures. However, if a housing facility or community is not now but intends to become eligible for the exemption, it should not delay development of appropriate procedures.
Q. What information should a housing provider include in its survey of residents in order to calculate whether the community or facility meets the 80% requirement of HOPA?
A. The owner or manager should obtain the total number of units in the housing community or facility. From that number, the following units should be excluded from the calculation of the 80% requirement:
- a) the number of units that have been continuously occupied by the same household since September 13, 1988, and the household did not contain and does not currently contain at least one person over the age of 55;
- b) the number of unoccupied units (see question 22);
- c) the number of units occupied by employees of the housing facility or community who are under 55 years of age, and who provide substantial management and maintenance services to the housing facility or community
- d) the number of units occupied solely by persons who are necessary or essential to provide medical and/or health and nursing care services as a reasonable accommodation to residents.
The owner or management then should calculate the percentage of the remaining number of units that are occupied by at least one person age 55 or over as of the date of the survey or the alleged date of violation of the Act.
Q. What is considered reliable age verification documentation?
A. The following documents are considered to be reliable for age verification: birth certificate, drivers license, passport, immigration card, military identification, or any other state, local, national or international documentation, provided it contains current information about the age or birth of the possessor.
Q. Is there any other documentation that would be considered reliable for age verification?
A. Yes. A self certification in a lease, application affidavit, or other document signed by an adult member of the household asserting that at least one occupant in the unit is 55 years of age or older will satisfy this requirement.
Q. What recourse is there for the owner or management of the housing community or facility if the occupants in the household refuse to cooperate in providing documentation regarding their age?
A. The housing/community facility may, if it has sufficient evidence, consider the household to be occupied by at least one person who is 55 years or older. Statements made under penalty of perjury from third party individuals who have knowledge of the age of the occupants of a household may be used when the household itself refuses to cooperate by providing age verification. Other information, such as statements indicating age in prior applications may be acceptable. In addition, the facility/community may base its decision on government documents such as census data. The census data referred to is household censuses that are conducted by many cities and towns.
Q. How frequently should a housing/community provider update its lists of occupants to be in compliance with the age verification requirements of HOPA? Are there any consequences if a housing provider fails to update its list of residents?
A. HOPA requires that a housing facility/community re-survey its lists of residents every two years to ensure that the 80% requirement is met. A housing community's or facility's failure to survey or re-survey its list of occupants in accordance with its age verification procedures does not demonstrate intent to housing for older persons, and could jeopardize the housing community's status as 55 or older housing.
Q. How long should a housing community/facility retain its records of survey information that show it meets the 80 percent requirement?
A. The documentation considered reliable for age verification need to be kept as long as the housing community/facility intends to proffer its exempt status.
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A useful article from the Becker & Poliakoff can be viewed here.
This is a link to the U.S. Department of Housing and Urban Development's rules and regulations for adhering to the Housing For Older Persons Act of 1995.
Federal Register 24 CFR Part 100; section 760.24-760.37 (4a), Florida Statutes
For a community to be considered "housing for older persons" as a 55+ community, the housing must be intended and operated for occupancy by persons 55 years of age or older and meet the following requirements:
- At least 80% of the occupied units are occupied by at least one person 55 years of age or older.
- The facility or community publishes and adheres to policies and procedures that demonstrate its intent to in fact be a provider of housing for older persons.
- The facility or community complies with rules established by the U.S. Department of Housing and Urban Development (HUD) for verification of occupancy.
Legislation which was passed in 2020 requires that age restricted communities prove that they meet the criteria for the status. Associations in Century Village have been pursuing their residents to provide the necessary documentation.
Your Association’s attorney may provide assistance with the guidelines and procedures to meet this requirement. The documentation must be provided to maintain the status of the Association.
Some Associations have had issue with getting unit owners to submit their information every two years. This requirement is mandated by the state statute. Inform owners that they should expect to provide the required information.
For more information, please visit the link below:
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HOUSING FOR OLDER PERSONS ACT (HOPA)- Century Village is a “HOPA Community”, which means that CV Associations may restrict persons under 55 years of age from residing in our Community. One of the requirements for maintaining HOPA Community status is for each CV Association to perform a survey of residents every two years. The Association’s Property Manager or Attorney can help with satisfying this requirement. For more information about this requirement, please see the following webpage, produced by the Becker Law Firm:
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This document answers questions concerning the final rule implementing the Housing for Older Persons Act of 1995 (HOPA).