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“No Children in Housing” Legally Allowed?

This article is about something we learn in our online real estate class however I thought it wouldn’t hurt to go into more detail. If we would see something like “No children allowed” on a advertisement some might immediately think, “is that allowed!?” so let’s look at the conditions in which it might be. Housing for the Elderly and how children might be legally kept out is at the heart of this concept. In most circumstances “familial status” is a protected class but in this scenario it is perfectly fine. Let’s take a brief look at familial status and the ability to segregate in housing based on age.

Again, as we hopefully learned in our online real estate class, the FHA was passed to protect the residential housing market from discrimination based on race, color, national origin, religion, sex, familial status or handicap. So how does familial status get looked upon blindly by the FHA when housing for the elderly is concerned?

Before we answer that, what exactly IS familial status? When we hear the wording, “familial status”, perhaps you imagine a traditional family of 5, the nuclear family that some of us grew up in. But is that accurate to how the government looks at it? For example, I’m a single dad. Is that a family? Does the government look at my daughter and I as a complete family? Or perhaps you might have been raised by your grandma. Is that “familial status”?

How is Familial Status Defined?

The FHA defines “familial status” as one or more persons under the age of 18 who reside with a parent or legal guardian. So that said, yes, my daughter and I are considered by law to have “familial status”. Same with growing up with your grandma 😉

So now that that is sorted out. How does this apply to permissible, age discrimination in residential housing? Well it means that the FHA allows in certain circumstances for the people running the housing to say, “you can’t live here” based on someone’s age IF the housing abides by certain realities.

What Are The Rules the FHA Sets Forth?

The rules the housing needs to follow to be exempt is:

  • The housing is occupied solely by people who are at least 62 years old; (THIS MEANS EVERYONE) or
  • The housing has at least one person who is 55 years of age in at least 80 percent of the occupied units, with a strict policy demonstrating the intent to house persons who are at least 55 years old.

Ok, I remember that from the online real estate class but that doesn’t make much sense. There are two rules that consist of two different ages. So which is it? 62 or 55? When does one rule apply and when does the other rule apply?

The First Rule

Well the first rule is simple. It means that EVERYONE is 62 or older. Plain and simple. Joe is 63, Pam is 62, Lauri is 71, and so on. EVERYONE is 62 and over. So, let’s let that rule be the easier to remember for any questions on your WV real estate licensing exam. 62 and up. Easy.

The Second Rule

The second rule has a few more criteria to meet, so if you see a question (or answer) playing with this one, make sure it meets ALL the criteria or this would be an easy way for the test writers to mess with you… and mess with you they will! Unfortunately that’s what real estate exam writers spend their free time doing. So, what are these 3 parts that all must exist?

The Fair Housing Act Requires

The three parts that MUST be followed are:

  1. 80% of the housing is occupied by residents 55 and over. This means that everyone in this type of community does NOT have to abide by the “EVERYONE IS 62” rule…  But the community must also abide by rule #2 and #3 as well.
  2. The housing community must publish things that state that they are housing for older people! This creates the evidence of intent. Meaning, one person doesn’t just wake up and get mad at the neighbor and say their grandkid can’t live there. There must be established rules about the housing, published, distributed and so on. And lastly,
  3. The community must follow the policies. Now this seems silly. Why would they go to all the trouble of writing policies, publishing them and so on and then not abide by them, but honestly, I can see this happening. Think about it. What if down the street there’s a 67-year-old that takes care of their recently added live in grandkid and everyone in the community generally looks the other way because there’s never been any trouble from them? Well, by doing that the community is making an unwritten exception and thus making the whole legal framework of this categorization fall apart. Who’s to say the next person to do this is ok? It makes the whole system become subjective to people’s feelings and circumstance and voids the housings, in writing intent, to be classified as “Housing for Elderly People”

To Summarize

So, there you go. If 80 percent of the units are occupied by at least one person who is 55 or older, then the community can make its own rules as to the occupancy of the remaining 20 percent of the units. Yes, their own rules for the remaining 20%. Mwahahaha evil laugh (power). Which means the community could allow children to co-exist in the remaining 20% of the housing, or not, IF the community so chooses. When doing something like this the community also needs to prepare surveys of its residents twice a year and keep these records for routine inspection by the regulating agencies that say this type of living is ok.

For a full breakdown of these rules and some really great questions and answers please check out this page published by HUD’s official site. This page is extremely in depth and would cover any possible twist you’d ever imagine on this topic on the WV Real Estate License Exam.

Why the Difference?

Why would you live in housing labeled for elderly people following the “62 and up rule”, or the “55 and up rule”? Because the 62 years and up rule (if established like that) doesn’t permit children… ever. But the 55 and up community (might allow children). It depends on what the community has decided, and this should be researched to some degree if you’re helping a client who desires this type of housing. Why?

Because everyone has their own vision of how they want to live. Knowing both scenarios are essential to make you a better real estate agent that educates your client properly. If you would mess up, assist a client who wants their grandchild to live with them, and submit an offer that gets accepted in a “62 years of age” community you might find yourself with some legal problems that could have been avoided.

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