Advertising Guidelines for Age-Restricted Communities Under the FHA

The Fair Housing Act of 1968 (FHA) protects people from discrimination when they are renting or buying a home, getting a mortgage, seeking housing assistance, or engaging in other housing-related activities. The FHA initially prohibited discrimination on the basis of race, color, national origin, religion and sex. It was later expanded to cover disability and familial status (e.g., families with children under the age of 18, pregnant woman).

In 1995, Congress addressed the prohibition against familial status discrimination and age-restricted housing through passage of the Housing for Older People Act (HOPA), which exempts three categories of housing from liability for familial status discrimination:

• Housing with federally assisted programs in place for older persons
• Housing intended for, and solely occupied by persons 62 years of age or older
• Housing intended and operated for occupancy by persons 55 years of age or older

A recent 55+ Housing Industry Council Shop Talk discussion focused on how the familial status protected class and the HOPA exemption affect advertising for age-restricted communities following a 2019 case against Facebook regarding its targeting practices. The case, brought forward by the National Fair Housing Alliance, determined that "Facebook's classification of its users and its ad targeting tools permit landlords, developers, and housing service providers to limit the audience for their ads based on sex, religion, familial status, and national origin in violation of the FHA."

The U.S. Department of Housing and Urban Development (HUD) filed its own charges against Facebook in 2019 for "encouraging, enabling and causing housing discrimination."

Facebook has since removed these tools and changed its policy; however, housing providers can still be subject to lawsuits if they advertise without first qualifying for the HOPA exemption. For example, to qualify for "55 or older" housing, the owner or manager must have policies in place demonstrating the intent to operate as "55 or older" housing, rules for age verification and at least 80% of the units must have at least one occupant who is 55 years of age. Without such policies, the community or development in question could be found in violation of the FHA and subject to significant penalties.

Certain words or phrases, such as "active adult," may draw additional attention to potential violations. Advertising should be carefully reviewed to ensure that it does not misrepresent any restrictions on who may apply for or purchase units.

For more information on this topic, contact Jeff Augello.

For more information on the 55+ Housing Industry Council, contact Joseph McGaw.