« Go Back

Legally speaking: Can I market a property as senior living without violating Fair Housing laws?

By Lorie Garland, OAR Assistant Vice President of Legal Services

The OAR Legal Assistance Hotline receives an array of real estate-related legal questions — including license law issues, disclosure, contract law, ethics and commission problems, among others. In an effort to help you work within the law, our “Legally Speaking” series spotlights some of the timely questions that are being asked by REALTORS. This one involves fair housing concerns when marketing a property exclusively to people 55 and older… 

Q: A seller called me to list his condo. The seller claims the condo development is for people 55 and over and has requested that if he lists with me, that I advertise the condo in that manner. Wouldn’t limiting buyers to those 55 and over be a violation of the fair housing laws? 

A: Under both federal and state fair housing laws, familial status (families with children) is a protected class. Therefore, it is generally a violation of the fair housing laws to advertise or refuse to sell or lease a property to a family with children.  However, there is an exemption for a property that meets the fair housing law requirements for housing for older persons.

To market a property as 55 and older housing, the development must be intended and operated for occupancy by persons 55 or older and meet the following three requirements:

  1. At least 80 percent of the occupied units are occupied by at least one person who is 55 or older;
  2. The development has adopted and adheres to policies and procedures that demonstrate the intent to be housing for persons 55 or older; and
  3. The development has policies and procedures in place to verify the exemptions age restriction requirements.

Prior to marketing this condo as 55 and older housing, the listing agent should obtain verification from the condo association or the association’s attorney that the development meets the fair housing law requirements for 55 and older housing. This is important because the fair housing law provides that a person (such as a listing agent) will not be held personally liable for damages if the person reasonably relied, in good faith, on representations that the development qualifies as housing for persons 55 and older. The good faith defense applies as long as the person had no actual knowledge that the development is not eligible for the exemption and the association has provided a written statement that the development complies with the requirements for the exemption.

Tags: legal, Legally Speaking