We all know that 80% or more of a community homesites must be occupied by at least one 55+ person, and that documented proof of age must be consistently required to qualify for 55+ status under HOPA. Let’s not forget that the requirements also mandate the re-survey.
What do the Regulations say? “…The procedures described in paragraph (b) [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] … 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 once every two years ….”
The comments behind the regulations clarify the duties required of the housing provider. HUD received many objections to the regulations imposing a continuing duty of providing a “census” or re-verification of a park’s “older persons” (55+ years of age) status. HUD’s responses help us understand the duties of maintaining a qualified “older persons” community.
For example, there were objections to the re-survey mandate on the grounds it was too burdensome. HUD stated that owners would not be unduly burdened by the update requirements since the information “will be readily available in the files.”
This comment reflects that the survey requirement can be fulfilled by preparation of a summary of names and ages of the homeowners based on existing file information (assuming the files are up to date). One might annotate a rent roll with resident ages and satisfy the requirement. HUD emphasizes that “…the re-survey does not require that all supporting documents be collected again – only that the community confirm that those persons counted as occupying dwellings for purposes of meeting the 80% requirement are, in fact, still in occupancy.”
It is also clear that the survey is a “summary” and not required to include underlying documentation (remember the POA must be obtained for approval of tenancy and kept in the resident’s file): “[Only the overall survey summary is required to be available for review, not the supporting documentation. The word ‘summary’ has been added to this section”).
Compilation of the “Summary”
In review of the files to compile the required “summary,” it is possible that some files may be missing POA documentation. Missing POA reflects inconsistent conformance to a required age verification policy. This can be fatal to defending a “55+” status. Yet, there are plausible reasons why POA may be absent. Perhaps a resident’s tenancy commenced before the date of enactment of the Fair Housing Amendments Act of 1988 (September 12, 1988): this was the last date to “grandfather” underage residents excluded from the calculation of the 80-20 requirement; perhaps the Xerox copier did not work on the day identification was checked; perhaps the applicant’s age was so obvious that documentation was overlooked; perhaps the POA was misplaced. None of these explanations will “wash” with fair housing enforcers. Now is the time for review of this information. Supplementing resident files may bolster a defense of the “55+” status by proving the 80-20 ratio, but cannot substitute for consistent conformance to a policy of seeking POA documentation. HUD’s requirements are crystal clear: “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.”
Should you seek missing POA information?
Yes. In a large scale review of resident files by fair housing enforcers, the main objective for review of proof of age may be to establish the 80-20 ratio: Proof of age in the file may itself be seen as evidence of adherence to collection of required data: even after-acquired information reflects, at least, compliance with the 2-year survey requirement. Proof of age includes the following: driver’s license (an expired or out-of-state license seems ‘ok’), birth certificate, passport, immigration card, military identification, any other state, local, national, or international official documents containing a birth date of “comparable reliability.” This may include birth certificates, baptismal or marriage documents, perhaps, and other public records.
What if the tenant refuses to provide proof of age?
New purchaser: Of course, refusal to supply proof of age when applying for tenancy is a basis for denying a tenancy application. The regulations also allow for a declaration from a member of the household over 18 years of age, stating that at least one person in the homesite is at least 55 years of age. This after-acquired information is permissible for the survey, but again does not bolster evidence of conformance to proof of age documentation required for tenancy approval.
HUD provides a skeletal sample of certification. This can also be used as part of the tenancy application alone or better yet as a backup to production of proof of age. The sample reads as follows: “I, (name), am 18 years of age or older 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.” Actual proof of age should be obtained at the application stage to avoid false reporting – no defense to a failure to achieve the 80-20 ration.
The regs also allow for other proof of age if an existing resident refuses to provide it. HUD states that “[I]f the occupants … refuse to comply with the age verification procedures, the [management] 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 local household 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 and be signed under the penalty of perjury.”
Thus, the survey could be supplemented by including a sworn declaration or affidavit by any person with personal knowledge of the age of the resident’s age. In past cases where proof of age was critically important, private investigation of public records to obtain that information has been conducted to provide such knowledge. Remember however, that obtaining proof of age “after the fact” shows compliance with the 2-year survey requirement, but does not substitute for a consistent practice of securing the required information at the time of processing the tenancy application.
HUD gives the following example as acceptable: “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.” In other words, the qualification procedure can be instituted within the application process itself. HUD states such an example (“All new leases, new purchase agreements, or new applications contain a provision directly above the signatory line for leases, asserting that at least one occupant or the swelling 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”). Actual proof of age should always be required with submission of the tenancy application as well.
The continuing survey requirement is mandatory. Whether failure to comply will be fatal to the assertion of “older persons” status is unknown, but this survey requirement is part of the “intent” prong of operating an “older persons” community. In sum, be sure that your records are accurate and up to date.