Implementation of the Housing for Older Persons Act of 1995

SUMMARY: This proposed rule would implement the Housing for Older

Persons Act of 1995 (HOPA). HOPA amended the requirements for

qualification under the ``housing for older persons'' exemption

established by the Fair Housing Act. In addition, HOPA established a

good faith defense against civil money damages for persons who

reasonably relied in good faith on the application of the ``housing for

older persons'' exemption even when, in fact, the housing provider did

not qualify for the exemption. This rule proposes to update HUD's

regulations to reflect the changes made by HOPA.

DATES: Comments on this proposed rule and the information collection

requirements must be received on or before March 17, 1997.

ADDRESSES: Interested persons are invited to submit comments regarding

this proposed rule to the Office of the General Counsel, Rules Docket

Clerk, Room 10276, Department of Housing and Urban Development, 451

Seventh Street, SW, Washington, DC 20410-0500. Communications should

refer to the above docket number and title and to the specific sections

in the regulation. Facsimile (FAX) comments are not acceptable. A copy

of each communication submitted will be available for public inspection

and copying during regular business hours at the above address. For

additional information concerning the information collection

requirements contained in this rule, please see the ``Findings and

Certifications'' section of this preamble. A copy of any comment

regarding the information collection requirements must be sent to:

Joseph F. Lackey, Jr., HUD Desk Officer, Office of Management and

Budget, New Executive Office Building, Room 10235, Washington, DC

20503.

FOR FURTHER INFORMATION CONTACT: Sara K. Pratt, Director, Office of

Investigations, Office of Fair Housing and Equal Opportunity, Room

5204, U.S. Department of Housing and Urban Development, 451 Seventh

Street, SW, Washington, DC 20410-0500, telephone (202) 708-0836. (This

is not a toll-free number.) Hearing or speech-impaired individuals may

access this number via TTY by calling the toll-free Federal Information

Relay Service at 1-800-877-8399.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Housing for Older Persons Act of 1995

The Fair Housing Act (Title VIII of the Civil Rights Act of 1968,

as amended, 42 U.S.C. 3601-3619) (the Act) exempts ``housing for older

persons'' from the prohibitions against discrimination because of

familial status. Section 807(b)(2)(C) of the Act exempts housing

intended and operated for occupancy by persons 55 years of age or older

that satisfies certain criteria. HUD has implemented the ``housing for

older persons'' exemption at 24 CFR part 100, subpart E.

The Housing for Older Persons Act of 1995 (Pub. L. 104-76, approved

December 28, 1995) (HOPA) replaced the original parameters of the 55-

or-older exemption. Section 2 of HOPA redefined 55-or-older housing as

housing:

(C) 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 [of HUD] for verification 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.

The most substantial change made by HOPA was the elimination of the

``significant facilities and services'' requirement. Section

807(b)(2)(C) of the Act originally required that 55-or-older housing

provide ``significant facilities and services specifically designed to

meet the physical or social needs of older persons.'' HOPA also adds

the new requirement that the housing facility or community comply with

any HUD regulations on verification and occupancy.

In other respects, however, the new requirements are equivalent to

the former provisions. HOPA requires that a housing facility or

community seeking to claim the 55-or-older exemption show three

factors. Similar to original section 807(b)(2)(C) of the Act, HOPA

requires: (1) that the housing be intended and operated for persons 55

years of age or older; (2) that at least 80 percent of the occupied

units be occupied by at least one person who is 55 years of age or

older; and (3) the housing facility or community publish and adhere to

policies and procedures that demonstrate its intent to qualify for the

55-or-older exemption. The housing facility or community must also

comply with rules issued by HUD for the verification of occupancy.

In addition, section 3 of HOPA added a new section 807(b)(5) to the

Act. This new section established a good faith defense against civil

money damages for persons who reasonably relied in good faith on the

application of the 55-or-older exemption, even when, in fact, the

housing facility or community did not qualify for the exemption. New

section 807(b)(5) provides:

(5)(A) A person shall not be held personally liable for monetary

damages for a violation of this title if such person reasonably

relied, in good faith, on the application of the exemption under

this subsection relating to housing for older persons.

(B) For purposes of this paragraph, a person may only show good

faith reliance on the application of the exemption by showing that--

(i) such person has no actual knowledge that the facility or

community is not, or will not be, eligible for such exemption; and

(ii) the facility or community has stated formally, in writing,

that the facility or community complies with the requirements for

such exemption.

B. This Proposed Rule

On April 1, 1996 (61 FR 14378), HUD published a final rule

streamlining its regulations implementing the Act.\1\ The April 1, 1996

final rule, which was part of HUD's efforts to implement the

President's regulatory reform initiative, removed the obsolete

provisions describing the ``significant facilities and services''

requirement. The rule also made several other streamlining changes to

HUD's regulations at subpart E of 24 CFR part 100. However, because the

April 1, 1996 rule was published for effect without prior public

comment, HUD postponed making the more substantial changes necessary to

complete its implementation of HOPA. This rule proposes to make these

regulatory amendments.

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\1\ A subsequent technical correction was published on April 25,

1996 (61 FR 18248).

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This rule proposes to revise Sec. 100.304, which presents an

overview of the 55-or-older exemption, to more closely track the HOPA

requirements. The rule also proposes to create a new Sec. 100.305,

which would update the 80 percent occupancy requirements. A new

Sec. 100.306 would describe how a facility or community may establish

its intent to operate as 55-or-older housing. New Sec. 100.307 would

set forth the necessary procedures for verification of the 80 percent

occupancy requirements. Finally, a new Sec. 100.308 would implement the

good faith defense against civil money damages.

Section 2 of HOPA requires that any implementing HUD regulations

``include examples of the types of policies and procedures relevant to

a determination of compliance with'' the statute's intent requirement.

Accordingly, paragraph (a) of proposed Sec. 100.306 would list several

factors which HUD considers relevant in determining whether the housing

facility or community intends to operate as housing for older persons.

However, 24 CFR 100.306(b) would state that the use of phrases such as

``adult living'', ``adult community'', ``40 and over community'', or

similar statements in any written advertisement or prospectus do not

create a presumption that the housing community satisfies HOPA's intent

requirement. The use of such phrases does not show that the facility or

community truly intends to operate as housing for older persons and are

inconsistent with that intent. HUD, in order to make a valid assessment

of intent, will consider the other measures taken by the facility or

community to demonstrate the intent required by HOPA. Moreover, the

housing facility or community may not evict families with children in

order to achieve occupancy of at least 80 percent of the occupied units

by at least one person 55 years of age or older.

HUD also proposes to provide guidance to assist housing facilities

and communities in applying the requirements of this proposed rule.

These examples are contained in an appendix to this proposed rule. The

appendix would not be codified in title 24 of the CFR. HUD may update

or revise the appendix as necessary.

II. Findings and Certifications

Public Reporting Burden

(a) The information collection requirements contained in

Secs. 100.306 and 100.307 of this proposed rule have been submitted to

the Office of Management and Budget (OMB) for review under the

Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). An agency may

not conduct or sponsor, and a person is not required to respond to, a

collection of information unless the collection displays a valid

control number.

(b) In accordance with 5 CFR 1320.5(a)(1)(iv), the Department is

setting forth the following concerning the proposed collection of

information:

(1) Title of the information collection proposal: Proposed Rule--

Implementation of the Housing for Older Persons Act of 1995.

(2) Summary of the collection of information: (i) Section 100.306

of this proposed rule would require that a housing facility or

community seeking to qualify as 55-or-older housing publish and adhere

to policies demonstrating that intent.

(ii) Section 100.307 of this proposed rule would establish two

information collection requirements. First, Sec. 100.307 would require

that an occupant of 55-or-older housing provide reliable documentation

regarding the occupancy of its unit, including the identification of

whether at least one occupant of the unit is 55 years of age or older.

Occupants would be further required to regularly update this

information. Secondly, Sec. 100.307 would require a housing facility or

community to maintain records of these occupancy surveys. The housing

facility or community would be required to produce the records upon:

(1) the filing of a discrimination complaint; and (2) the request of

any person.

(3) Description of the need for the information and its proposed

use: To appropriately determine whether a housing facility or community

qualifies for the housing for older persons exemption, certain

information is required. HUD must determine whether the housing

facility or community: (1) has published and adhered to policies

demonstrating its intent to operate as 55-or-older housing; and (2) can

demonstrate, through reliable surveys and affidavits, that at least 80

percent of its occupied units are occupied by at least one person 55

years of age or older.

(4) Description of the likely respondents, including the estimated

number of likely respondents, and proposed frequency of response to the

collection of information: Respondents will be: (1) occupants of 55-or-

older housing; and (2) providers of 55-or-older housing, such as

manufactured home parks, home owners associations, and property

managers. (Please see paragraph (5) below for the number of likely

respondents and the proposed frequency of the response to the

collection of information.)

(5) Estimate of the total reporting and recordkeeping burden that

will result from the collection of information:

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Proposed section of 24 CFR Number of Est. avg. response time

Type of collection affected respondents Frequency of response (hrs.) Annual burden hrs.

--------------------------------------------------------------------------------------------------------------------------------------------------------

Publication of policies 24 CFR 100.306 1,000 1.......................... 2 hrs.................. 2,000

demonstrating intent to

operate as 55-or-older housing.

Data on the age of occupants in 24 CFR 100.307 10,000 1.......................... .1 hrs................. 1,000

55-or-older housing.

Recordkeeping.................. 24 CFR 100.307 1,000 One time every other year.. 5 hrs.................. 2,500,

------------------------

Total Burden............. ........................... ........... ........................... ....................... 5,500

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(c) In accordance with 5 CFR 1320.8(d)(1), the Department is

soliciting comments from members of the public and affected agencies

concerning the proposed collection of information to:

(1) Evaluate whether the proposed collection of information is

necessary for the proper performance of the functions of the agency,

including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of

the proposed collection of information;

(3) Enhance the quality, utility, and clarity of the information to

be collected; and

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(4) Minimize the burden of the collection of information on those

who are to respond; including through the use of appropriate automated

collection techniques or other forms of information technology, e.g.,

permitting electronic submission of responses.

(d) OMB is required to make a decision concerning the collection of

information contained in this proposed rule between 30 and 60 days

after publication of this document in the Federal Register. Therefore,

a comment to OMB is best assured of having its full effect if OMB

receives it within 30 days of publication. This does not effect the

deadline for the public to comment on the proposed rule. Comments on

the paperwork collection requirements contained in this rule must be

submitted to those persons indicated in the Addresses section of this

preamble.

Unfunded Mandates Reform Act

The Secretary has reviewed this proposed rule before publication

and by approving it certifies, in accordance with the Unfunded Mandates

Reform Act of 1995 (2 U.S.C. 1532), that this proposed rule does not

impose a Federal mandate that will result in the expenditure by State,

local, and tribal governments, in the aggregate, or by the private

sector, of $100 million or more in any one year.

Environmental Impact

In accordance with 24 CFR 50.19(c)(3) of the Department's

regulations, published in a final rule on September 27, 1996 (61 FR

50914), the policy set forth in this proposed rule is categorically

excluded from the requirements of the National Environmental Policy Act

of 1969.

Executive Order 12612, Federalism

The General Counsel, as the Designated Official, under section 6(a)

of Executive Order 12612, Federalism, has determined that the policies

contained in this proposed rule would not have substantial direct

effects on States or their political subdivisions, or the relationship

between the Federal government and the States, or on the distribution

of power and responsibilities among the various levels of government.

This rule proposes to implement the requirements of HOPA by revising

the parameters for ``55-or-older'' housing found at 24 CFR part 100,

subpart E. It effects no changes in the current relationships among the

Federal government, the States and their political subdivisions in

connection with HUD programs.

Executive Order 12606, The Family.

The General Counsel, as the Designated Official under Executive

Order 12606, The Family, has determined that this proposed rule would

not have a potential significant impact on family formation,

maintenance, and general well-being and, thus, is not subject to review

under the Order. This proposed rule would update HUD's regulations

governing ``housing for older persons'' to reflect the changes made by

HOPA. No significant change in existing HUD policies or programs would

result from promulgation of this proposed rule, as those policies and

programs relate to family concerns.

Regulatory Flexibility Act

The Secretary, in accordance with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed and approved this proposed rule, and in so

doing certifies that this proposed rule would not have a significant

economic impact on a substantial number of small entities. This rule

proposes to update HUD's regulations implementing the ``housing for

older persons'' exemption to the Fair Housing Act. Specifically, the

rule would implement the statutory amendments made by HOPA. These

revisions would provide housing facilities and communities with a

better understanding of what housing qualifies for the ``55-or-older''

exemption to the Fair Housing Act's prohibitions against discrimination

on the basis of familial status. The proposed rule would not have any

meaningful impact on small entities.

List of Subjects in 24 CFR Part 100

Aged, Fair housing, Individuals with disabilities, Mortgages,

Reporting and recordkeeping requirements.

Accordingly, 24 CFR part 100 is proposed to be amended as follows:

PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT

1. The authority citation for 24 CFR part 100 continues to read as

follows:

Authority: 42 U.S.C. 3535(d), 3600-3619.

2. Subpart E is amended by revising Sec. 100.304; and by adding

Sec. Sec. 100.305, 100.306, 100.307, and 100.308, to read as follows:

Subpart E--Housing for Older Persons

Sec. 100.304 55 or over housing.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for persons 55 years of age or

older. Housing qualifies for this exemption if:

(1) The alleged violation occurred before December 28, 1995 and the

housing community or facility complied with the HUD regulations in

effect at the time of the alleged violation; or

(2) The alleged violation occurred on or after December 28, 1995

and the housing community or facility complies with:

(i) Sections 807(b)(2)(C) and 807(b)(5)(A) and (B) of the Fair

Housing Act; and

(ii) 24 CFR 100.305, 100.306, and 100.307.

(b) For purposes of this subpart, housing facility or community

means any dwelling or group of dwelling units governed by a common set

of rules, regulations or restrictions. A portion or portions of a

single building shall not constitute a housing facility or community.

Examples of a housing facility or community include, but are not

limited to:

(1) A condominium association;

(2) A cooperative;

(3) A property governed by a homeowners' or resident association;

(4) A municipally zoned area;

(5) A leased property under common private ownership; and

(6) A mobile home park.

(c) For purposes of this subpart, older person means a person 55

years of age or older.

Sec. 100.305 80 percent occupancy.

(a) In order for a housing facility or community to qualify as 55-

or-older housing, at least 80 percent of its occupied units must be

occupied by at least one person 55 years of age or older.

(b) For purposes of this subpart, occupied unit means:

(1) A dwelling unit that is actually occupied by one or more

persons on the date that the exemption for 55-or-older housing is

claimed; or

(2) A temporarily vacant unit, if the primary occupant has resided

in the unit during the past year and intends to return on a periodic

basis.

(c) For purposes of this subpart, occupied by at least one person

55 years of age or older means that on the date the exemption for 55-

or-older housing is claimed:

(1) At least one occupant of the dwelling unit is 55 years of age

or older; or

(2) If the dwelling unit is temporarily vacant, at least one of the

occupants immediately prior to the date on which the unit was vacated

was 55 years of age or older.

(d) Newly constructed housing for first occupancy after March 12,

1989

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need not comply with the requirements of this section until at least 25

percent of the units are occupied. For purposes of this section, newly

constructed housing includes facilities or communities that have been

unoccupied for at least 90 days prior to re-occupancy due to renovation

or rehabilitation.

(e) Housing satisfies the requirements of this section even though:

(1) On September 13, 1988, under 80 percent of the occupied units

in the housing facility or community were occupied by at least one

person 55 years of age or older, provided that at least 80 percent of

the units occupied by new occupants after September 13, 1988 are

occupied by at least one person 55 years of age or older.

(2) There are unoccupied units, provided that at least 80 percent

of the occupied units are occupied by at least one person 55 years of

age or older.

(3) There are units occupied by employees of the housing facility

or community (and family members residing in the same unit) who are

under 55 years of age, provided the employees perform substantial

duties related to the management or maintenance of the facility or

community.

(4) There are units occupied by persons who are necessary to

provide a reasonable accommodation to disabled residents as required by

Sec. 100.204.

(5) There are insufficient units occupied by at least one person 55

years of age or older, but the housing facility or community, at the

time the exemption is asserted:

(i) Reserves all unoccupied units for occupancy by at least one

person 55 years of age or older until at least 80 percent of the units

are occupied by at least one person who is 55 years of age or older;

and

(ii) Meets the requirements of Sec. Sec. 100.304, 100.305, 100.306,

and 100.307.

(f) Where application of the 80 percent rule results in a fraction

of a unit, that unit shall be considered to be included in the units

that must be occupied by at least one person 55 years of age or older.

(g) Each housing facility or community may determine the age

restriction for units that are not occupied by at least one person 55

years of age or older.

Sec. 100.306 Intent to operate as 55 or over housing.

(a) In order for a housing facility or community to qualify as 55-

or-older housing, it must publish and adhere to policies and procedures

that demonstrate its intent to operate as housing for persons 55 years

of age or older. The following factors, among others, are considered

relevant in determining whether the housing facility or community has

complied with this requirement:

(1) The manner in which the housing facility or community is

described to prospective residents;

(2) Any advertising designed to attract prospective residents;

(3) Lease provisions;

(4) Written rules, regulations, covenants, deed or other

restrictions;

(5) The maintenance and consistent application of relevant

procedures;

(6) Actual practices of the housing facility or community; and

(7) Public posting in common areas of statements describing the

facility or community as housing for persons 55 years of age or older.

(b) The use of phrases such as ``adult living'', ``adult

community'', ``40 and over community'', or similar statements in any

written advertisement or prospectus do not create a presumption that

the housing facility or community intends to operate as housing for

persons 55 years of age or older.

(c) If there are substantial legal impediments to removing language

from deed or other restrictions that may be inconsistent with the

intent to provide 55-or-older housing, HUD shall consider documented

evidence of a good faith attempt to remove such language in determining

whether the housing facility or community complies with the

requirements of this section.

(d) The fact that a unit is occupied by a family with a child under

eighteen years of age, and not by a person 55 years of age or older,

shall not be considered in determining whether the housing facility or

community intends to operate as 55-or-older housing.

Sec. 100.307 Verification of occupancy.

(a) In order for a housing facility or community to qualify as 55-

or-older housing, it must be able to produce, in response to a

complaint filed under this title, verification of compliance with

Sec. 100.305 through reliable surveys and affidavits.

(b) A facility or community shall, within 180 days of the effective

date of a rule finalizing the policies and procedures described in this

proposed rule, develop procedures for routinely determining the

occupancy of each unit, including the identification of whether at

least one occupant of each unit is 55 years of age or older. Such

procedures may be part of a normal leasing or purchasing arrangement.

(c) The procedures described in paragraph (b) of this section must

provide for regular updates, through surveys or other means, of the

initial information supplied by the occupants of the housing facility

or community. Such updates must take place at least once every two

years. A survey may include information regarding whether any units are

occupied by persons described in paragraphs (e)(1), (e)(3), and (e)(4)

of Sec. 100.305.

(d) The following documents are considered reliable documentation

of the age of the occupants of the housing facility or community:

(1) Driver's license;

(2) Birth certificates;

(3) Passports;

(4) Immigration card;

(5) Military identification;

(6) Any other state, local, national, or international official

documents containing a birth date of comparable reliability; or

(7) A certification in a lease, application, affidavit, or other

document signed by an adult member of the household asserting that at

least one person in the unit is 55 years of age or older.

(e) The housing facility or community must establish and maintain

appropriate policies to require that occupants comply with the age

verification procedures required by this section.

(f) If the occupants of a particular dwelling unit refuse to comply

with the age verification procedures, the housing facility or community

may, if it has sufficient evidence, consider the unit to be occupied by

at least one person 55 years of age or older. Such evidence may

include:

(1) Government records or documents, such as a census;

(2) Prior forms or applications; or

(3) A statement from an individual who has personal knowledge of

the age of the occupants. The individual's statement must set forth the

basis for such knowledge.

(g) Surveys and verification procedures which comply with the

requirements of this section shall be admissible in administrative and

judicial proceedings for the purpose of verifying occupancy.

(h) Occupancy surveys shall be available for inspection upon

reasonable notice and request by any person.

Sec. 100.308 Good faith defense against civil money damages.

(a) A person shall not be held personally liable for monetary

damages for discriminating on the basis of familial status, if the

person acted with the good faith belief that the housing facility or

community qualified as 55-or-older housing.

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(b)(1) A person claiming the good faith defense must have actual

knowledge that the housing facility or community has, through an

authorized representative, asserted in writing that it qualifies as 55-

or-older housing. The person claiming the good faith defense must

demonstrate this actual knowledge through reliable evidence.

(2) For purposes of this section, an authorized representative of a

housing facility or community means the individual, committee,

management company, owner, or other entity having the responsibility

for adherence to the requirements established by this subpart.

(c) A person shall not be entitled to the good faith defense if the

person has actual knowledge that the housing facility or community does

not, or will not, qualify as 55-or-older housing. Such a person will be

ineligible for the good faith defense regardless of whether the person

received the written assurance described in paragraph (b) of this

section.

Dated: October 11, 1996.

Elizabeth K. Julian,

Assistant Secretary for Fair Housing and Equal Opportunity.

Note: This Appendix will not be codified in Title 24 of the CFR.

Appendix--Examples of Applications of HUD's Regulations Governing the

55-or-older Exemption to the Fair Housing Act

Sections

1. Purpose

2. 80 percent occupancy.

3. Intent to operate as 55-or-older housing.

4. Verification of occupancy.

5. Future revisions to this appendix.

1. Purpose.

The Fair Housing Act (Title VIII of the Civil Rights Act of 1968,

as amended, 42 U.S.C. 3601-3619) (the Act) exempts ``housing for older

persons'' from the prohibitions against discrimination because of

familial status. Section 807(b)(2)(C) of the Act exempts housing

intended and operated for occupancy by persons 55 years of age or older

that satisfies certain criteria. HUD has implemented the ``housing for

older persons'' exemption at 24 CFR part 100, subpart E. Specifically,

Sec. Sec. 100.304, 100.305, 100.306, and 100.307 set forth the

requirements for housing seeking to qualify for the 55-or-older

exemption. The purpose of this appendix is to provide guidance to

housing facilities or communities in applying these HUD requirements.

2. 80 Percent Occupancy

Section 100.305 provides that in order for a housing facility or

community to qualify as 55-or-older housing, at least 80 percent of its

occupied units must be occupied by at least one person 55 years of age

or older. This occupancy requirement must be met at the time of any

alleged violation of the Act. Paragraph (f) of Sec. 100.305 states that

where application of the 80 percent rule results in a fraction of a

unit, that unit shall be considered to be included in the units that

must be occupied by at least one person 55 years of age or older.

Example: A community or facility contains 63 occupied units.

Eighty percent of 63 units equals 50.4. Under Sec. 100.305(d), 51

units would require occupancy by at least one person 55 years of age

or older.

Section 100.305 also sets forth the other requirements a housing

facility or community must follow in calculating occupancy. The

following examples illustrate these requirements:

Example 1

Buena Vista is a condominium association of 120 units. On

September 13, 1988, twenty (20) of the occupied units are not

occupied by at least one person 55 years of age or older.

On April 1, 1996, Buena Vista declares itself to be 55-or-older

housing. On that date:

(1) The twenty (20) persons described above are still residing

at Buena Vista;

(2) Ten (10) units of the total 120 units are unoccupied;

(3) One (1) of the units is occupied by the association's

maintenance supervisor; and

(4) Two (2) units are occupied by live-in health aides who

provide reasonable accommodations to residents with disabilities.

How many of the occupied units must be occupied by at least one

person 55 years of age or older in order for Buena Vista to qualify

as 55-or-older housing?

Under Sec. 100.305(e), Buena Vista would calculate its

compliance with the 80 percent occupancy requirement by subtracting

the following units from the total 120 units:

(1) The 20 units not occupied by at least one person 55 years of

age or older on September 13, 1988 (See Sec. 100.305(e)(1));

(2) The ten (10) unoccupied units (See Sec. 100.305(e)(2));

(3) The one (1) unit occupied by the maintenance person (See

Sec. 100.305(e)(3)); and

(4) The two (2) units occupied by the health aides (See

Sec. 100.305(e)(4)).

Subtracting these 33 units from the total of 120 units leaves 87

units. At least 80 percent of these 87 units must be occupied by at

least one person 55 years of age or older. Eighty percent of 87

equals 69.6. Due to Sec. 100.305(d), 70 units must be occupied by at

least one person 55 years of age or older.

Example 2

Topaz House is a cooperative of 100 units. On January 20, 1996,

Topaz House announces its intent to be 55-or-older housing and

publishes policies and procedures sufficient to satisfy

Sec. 100.306. On that date, of the 100 total units:

(1) Sixty (60) of the occupied units are occupied by at least

one person 55 years of age or older;

(2) Thirty (30) of the occupied units do not have occupants 55

years of age or older; and

(3) Ten (10) units are unoccupied.

Since 60 out of the 90 occupied units are occupied by at least

one person 55 years of age or older, the Topaz House only has 67

percent of its occupied units occupied by at least one person 55

years of age or older. Under Sec. 100.305(e)(5), Topaz House may

still qualify for the 55-or-older exemption if it:

(1) Reserves all unoccupied units for occupancy by at least one

person 55 years of age or older until at least 80 percent of the

units are occupied by at least one person who is 55 years of age or

older; and

(2) Meets the requirements of Secs. 100.304, 100.305, 100.306,

and 100.307.

There is no requirement that Topaz House take any action

concerning the residents under 55 years of age who are occupying

units on the date the building declares its intent to be 55-or-older

housing.

Example 3

Snowbird City is a mobile home community in Texas with 100

units. Snowbird City complies with all other requirements of 55-or-

older housing, but is uncertain of its compliance with the 80

percent occupancy rule.

Fifty out of the 100 units are occupied year round. Of these

fifty units, 12 units are not occupied by at least one person 55

years of age or older. Of the remaining 50 units, 5 are unoccupied

and offered for sale, and the remaining 45 are occupied by at least

one person 55 years of age or older each winter on a routine and

reoccurring basis.

If a complaint of familial status discrimination is filed in

December, the community meets the 80 percent occupancy requirement

because 83 out of the 95 occupied units (87 percent), are occupied

by at least one person 55 years of age or older. If the complaint is

filed in July, Snowbird City still meets the requirement. Under

Sec. 100.305(b), a temporarily vacant unit is considered occupied by

a person 55 years of age or older if:

(1) The primary occupant has resided in the unit during the past

year; and

(2) The occupant intends to return on a periodic basis.

Example 4

The King Philip Senior Community is a newly renovated building

originally built in 1952. It has been vacant for over one year while

extensive renovations were completed. The building contains 200

units. The King Philip Senior Community is intended to be operated

as a 55-or-older community.

Under Sec. 100.305(d), newly constructed housing need not comply

with the 80 percent occupancy requirement until 25 percent of the

total units are occupied. For purposes of Sec. 100.305(d), newly

constructed housing includes housing that has been unoccupied for at

least 90 days due to renovation or

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rehabilitation. Accordingly, the King Philip Senior Community need

not comply with the 80 percent occupancy requirement until 50 out of

its 200 units (25 percent) are occupied. Subsequent to occupancy of

the 50th unit, however, the building will have to satisfy the 80

percent occupancy rule in order to qualify as 55-or-older housing.

3. Intent To Operate as 55-or-Older Housing

Section 100.306 provides that in order for a housing facility or

community to qualify as 55-or-older housing, it must publish and adhere

to policies and procedures that demonstrate its intent to operate as

housing for persons 55 years of age or older. Section 100.306 also

details the factors HUD will utilize to determine whether a housing

facility or community has met this intent requirement. The following

are examples of housing facilities and communities which satisfy the

intent requirement described in Sec. 100.306:

Example 1

A mobile home park which takes the following actions satisfies

the intent requirement:

(1) Posts a sign indicating that the park is 55-or-older

housing;

(2) Includes lease provisions stating that the park intends to

operate as 55-or-older housing; and

(3) Has provided local realtors with copies of the lease

provisions.

Example 2

An area zoned by a unit of local government as ``senior

housing'' satisfies the intent requirement if:

(1) Zoning maps containing the ``senior housing'' designation

are available to the public;

(2) Literature distributed by the area describes it as ``senior

housing'';

(3) The ``senior housing'' designation is recorded in accordance

with local property recording statutes; and

(4) Zoning requirements include the 55-or-older requirement or a

similar provision.

Example 3

A condominium association satisfies the intent requirement if it

has:

(1) Adopted, through its rules and regulations, restrictions on

the occupancy of units consistent with HUD's regulations governing

55-or-older housing at 24 CFR part 100, subpart E;

(2) Has distributed copies of the rules to all occupants; and

(3) Has notified local realtors of the restrictions.

The following is an example of a housing facility which has

failed to satisfy the intent requirement described in Sec. 100.306:

Example 4

A homeowners association has failed to meet the intent

requirement if it has Covenants, Conditions and Restrictions which

refer to an ``adult community,'' has posted a sign stating ``A 40

and over community'' and has restricted visiting children to a

maximum of two weeks, but contains no similar restriction for

visiting adults.

4. Verification of Occupancy

Section 100.307 provides that in order for a housing facility or

community to qualify as 55-or-older housing, it must be able to

produce, in response to a complaint alleging a violation of the Act,

verification of compliance with Sec. 100.305 through reliable surveys

and affidavits. Paragraph (d)(7) of Sec. 100.307 includes self-

certifications in a list of documents considered reliable documentation

of the age of occupants. The self-certification may be included in a

lease or other document, and must be signed by an adult member of the

household asserting that at least one person in the unit is 55 years of

age or older. The following examples provide acceptable self-

certification provisions:

Example 1

All new leases, new purchase agreements, or new applications

contain a provision directly above the signatory line for lessees,

asserting that at least one occupant of the dwelling will be 55

years of age or older. In addition, the community surveys all

current residents for their occupancy status in compliance with the

55-or-older requirements.

Example 2. Sample certification

I, (name), am over the age of 18 and a member of the household

that resides at (housing facility or community), (unit number or

designation). I hereby certify that I have personal knowledge of the

ages of the occupants of this household and that at least one

occupant is 55 years of age or older.

Paragraph (e) of Sec. 100.307 requires that the housing facility or

community establish appropriate policies to require that all occupants

comply with the age verification procedures. The following examples

illustrate acceptable policies:

Example 1

A condominium association establishes a rule that the board of

directors must approve all new occupants. One criteria for approval

is that new occupants of each unit inform the condominium

association whether at least one person occupying the unit is 55

years of age or older.

Example 2

A homeowners association amends its Covenants, Conditions and

Restrictions, and records them at the appropriate government

recording office. The amendments require applicants to state whether

at least one occupant is 55 years of age or older.

Example 3

The owner of a mobile home park where the residents own the

coach but rent the land requires a statement of whether at least one

occupant is 55 years of age or older before any sublease or new

rental.

5. Future Revisions to This Appendix

HUD may update or revise this appendix as necessary.

[FR Doc. 97-840 Filed 1-13-97; 8:45 am]

BILLING CODE 4210-28-P