1. (a) The Fair Housing Act, 42 U.S.C. §§ 3601 – 3619, states that there are three (3) types of elderly housing:

   1. (1)

      1. (A) Federal or state programs that the Secretary of Housing and Urban Development has recognized as being elderly so long as the definition of the program is followed.
      2. (B) United State Department of Agriculture Rural Development, Department of Housing and Urban Development, and PHA elderly housing programs fall under this category.
      3. (C) In these programs, the definition of “elderly” is the tenant or cotenant must be:

2. (i) Sixty-two (62) or older; or

   1. (ii) Disabled, if the disabled tenant is of legal age.

      1. (D) In these programs, children are allowed if they are members of the elderly household.
      2. (E) In such elderly properties, many disabled applicants with or without children have been housed based on this definition.
      3. (F) If a federal agency or a state government program wishes to create another elderly program that does not follow one (1) of the two (2) remaining choices in the Fair Housing Act, then that definition must receive a waiver from the United States Secretary of Housing and Urban Development.

      4. (G)

         1. (i) How do you know if your property is recognized as being elderly?
         2. (ii) You must determine if your property:
3. (a) (a) Has project-based rental subsidy;

4. (b) (b) Is insured by the Department of Housing and Urban Development or United States Department of Agriculture Rural Development; or

   1. (c) (c) Has United States Department of Housing and Urban Development or United States Department of Agriculture Rural Development funding.

      1. (iii) Then you must comply with that program's definition of “elderly”;

   2. (2)

      1. (A) Sixty-two (62) and older housing.

      2. (B)

         1. (i) This is the most restrictive type of elderly housing since every resident must be sixty-two (62) or older.
         2. (ii) In other words, if an applicant who was sixty-three (63) applied with a spouse or household member who was sixty-one (61), the applicants would be ineligible for this type of housing.
      3. (C) Children are not allowed nor are disabled persons or other applicants who are under sixty-two (62); and

   3. (3)

      1. (A) Fifty-five (55) and older housing.

      2. (B)

         1. (i) This type of property is recognized as elderly if one (1) household member is fifty-five (55) or older in at least eighty percent (80%) of the units at all times.
         2. (ii) The remaining twenty percent (20%) of the units may be rented to households other than age fifty-five-plus.
      3. (C) An applicant household consisting of a fifty-seven-year-old and a fifty-two-year-old applies, the fifty-seven-year-old later leaves or dies, with the remaining member under fifty-five (55) certainly allowed to stay.

      4. (D)

         1. (i) There are two (2) important things to recognize under the Fair Housing Act.
         2. (ii)

5. (a) (a) The first is that age is not a Fair Housing Act protection, so an owner may:

   1. (1) (1) Limit the age of other household members to, for example, fifty (50); or
   2. (2) (2) Require that everyone be fifty-five (55) or that all one hundred percent (100%) of the units have at least one (1) fifty-five-year-old tenant.

6. (b) (b) In fact, if an owner wished to turn fifty-five-plus housing into sixty-plus, sixty-two-plus, sixty-five-plus, or another age-plus housing, it would still meet the requirements of the Fair Housing Act since these ages are obviously over fifty-five (55).

   1. (iii)
7. (a) (a) The second item to note is that in fifty-five-plus housing, there must be at least one (1) service or amenity that would benefit the elderly.

8. (b) (b) This could be:

   1. (1) (1) A van for transportation to shopping or doctors;
   2. (2) (2) Meals programs;
   3. (3) (3) Specific seniors' activities on a regular basis; or
   4. (4) (4) Other services that would distinguish this property as elderly housing.

9. (b)

   1. (1) New occupants must meet the age requirements.
   2. (2) Vacant units must be reserved for occupancy by persons who meet the age requirements.

Codification Notes: "PHA" means public housing authority.