[House Report 104-91]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 104-91
_______________________________________________________________________
HOUSING FOR OLDER PERSONS ACT OF 1995
_______________________________________________________________________
March 28, 1995.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Canady, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 660]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 660) to amend the Fair Housing Act to modify the
exemption from certain familial status discrimination
prohibitions granted to housing for older persons, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings and Subcommittee Consideration.......................... 5
Committee Consideration.......................................... 5
Votes of the Committee........................................... 5
Committee Oversight Findings..................................... 8
Committee on Government Reform and Oversight Findings............ 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Statement Required by Pub. L. No. 104-1.......................... 9
Inflationary Impact Statement.................................... 9
Section-by-Section Analysis and Discussion....................... 10
Agency Views..................................................... 11
Changes in Existing Law Made by the Bill, as Reported............ 13
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Housing for Older Persons Act of
1995''.
SEC. 2. DEFINITION OF HOUSING FOR OLDER PERSONS.
Subparagraph (C) of section 807(b)(2) of the Fair Housing Act (42
U.S.C. 3607(b)(2)) is amended to read as follows:
``(C) that meets the following requirements:
``(i) The housing is in a facility or community
intended and operated for the occupancy of at least 80
percent of the occupied units by at least one person 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 clause (i), whether or not
such policies and procedures are set forth in the
governing documents of such facility or community.
``(iii) The housing facility or community complies
with rules made by the Secretary for the verification
of occupancy. Such rules shall allow for that
verification by reliable surveys and affidavits and
shall 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.''.
SEC. 3. GOOD FAITH ATTEMPT AT COMPLIANCE DEFENSE AGAINST CIVIL MONEY
DAMAGES.
Section 807(b) of the Fair Housing Act (42 U.S.C. 3607(b)) is
amended by adding at the end the following:
``(5) Good Faith Reliance.--(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 the purposes of this paragraph, a person engaged in the
business of residential real estate transactions may 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 certified to such
person, in writing and on oath or affirmation, that the
facility or community complies with the requirements for such
exemption.''.
Purpose and Summary
H.R. 660, introduced by Congressman Clay Shaw of Florida,
removes the ``significant facilities and services'' requirement
for housing for older persons from the Fair Housing Act, 42
U.S.C. 3601-3631. In 1988, when Congress amended the Fair
Housing Act to prohibit discrimination against families with
children, it specifically exempted certain housing for older
persons in order to protect the rights of the elderly to live
in age-restricted housing. Generally, housing for older persons
where 80% of the units have at least one person 55 years of age
or older are exempt if they have or provide ``significant
facilities and services.'' Unfortunately this exemption has
been narrowly construed and does not offer the protection to
the elderly intended by Congress in passing the 1988
amendments. Consequently, legislation is necessary to establish
a workable and fair exemption to protect senior citizens who
wish to live in retirement communities.
H.R. 660 sets forth an objective standard for determining
whether a facility or community qualifies for the exemption.
Under the bill, if a community can show that eighty percent of
its units have one or more occupants aged 55 or older, and
meets certain other requirements, it passes the ``housing for
older persons'' test. In addition, the bill would exempt real
estate agents and condo board members who acted in ``good
faith'' from liability for monetary damages in suits stemming
from the seniors-only provision.
Background and Need for the Legislation
In general, the Fair Housing Act makes it unlawful to
discriminate based on race, color, religion, sex, familial
status, handicap or national origin in the sale or rental of a
covered dwelling or to threaten, intimidate, coerce or
interfere with an individual's exercise or enjoyment of a right
secured under the Act. The prohibition on discrimination based
on ``familial status'' was added through the 1988 amendments to
the Fair Housing Act, Pub. L. No. 100-430.
Under 42 U.S.C. 3602(k) familial status is defined as:
One or more individuals (who have not attained the
age of 18 years) being domiciled with; (1) a parent or
another person having legal custody of such individual
or individuals; or (2) the designee of such parent or
other person having such custody, with the written
permission of such parent or other person.
In passing the Fair Housing Amendments of 1988 and
protecting families with children against discrimination,
Congress specifically recognized the particular needs of older
people to live among their peers in age-restricted communities.
The Fair Housing Act exempts ``housing for older persons'' from
the prohibition on familial status, 42 U.S.C. 3607(b)(1).
``Housing for older persons'' is defined as housing that is
occupied by persons 62 years of age or older or housing that is
intended for occupancy by persons 55 years of age or older
where there are ``significant facilities and services
specifically designed to meet the physical or social needs of
older persons.''
The ``significant facilities and services'' provision has
been a source of controversy since the law took effect in 1989.
Seniors' communities throughout the country have been faced
with lawsuits challenging their qualifications under this
provision. The lack of clear guidelines have made it difficult
for senior's communities to qualify for the exemption. In
addition, seniors with low or fixed incomes are often unable to
afford to pay the fees or rents necessary to defray the costs
for such additional services or facilities.
The Housing and Community Development Act of 1992 required
HUD to issue a revised rule defining the term ``significant
facilities and services.'' \1\ On July 7, 1994, HUD issued
proposed rules to define the meaning of these terms.
Unfortunately, the proposed rules were also a source of
controversy because, as drafted, they would have imposed
expensive and unnecessary burdens on seniors-only housing.\2\
On November 30, 1994 Assistant Secretary Achtenberg announced
that HUD was withdrawing the proposed regulations for
``seniors-only'' housing.
\1\ Pub. L. No. 102-550, Title IX, Section 919, October 28, 1992,
106 Stat. 3883, provided that: ``The Secretary of Housing and Urban
Development shall, not later than 180 days after the date of enactment
of this Act make rules defining what are `significant facilities and
services especially designed to meet the physical or social needs of
older persons' required under section 807(b)(2) of the Fair Housing Act
to meet the definition of the term `housing for older persons' in such
section.''
\2\ The proposed rules were criticized for requiring housing
providers to furnish costly alterations, modifications and
accommodations for elderly, disabled persons. The proposed regulations
assumed that older persons would have ``mobility, visual and hearing
impairments'' and required housing providers to furnish ``significant
facilities and services'' for individuals with those impairments, even
if the older persons in the community seeking the exemption were
healthy and had no need for such services.
On March 14, 1995, HUD published a new proposed rule to
define significant facilities and services. The new proposed
rule will establish a broad checklist of potential services and
facilities and allow communities to ``self-certify'' that they
are eligible for the exemption. Assistant Secretary Achtenberg
has acknowledged, however, that in crafting these regulations,
she was constrained by certain judicial decisions, like, for
example, the opinion of the Ninth Circuit Court of Appeals in
U.S. v. City of Hayward, 36 F.3d. 832 (1994). In Hayward, the
court found that providers of housing seeking an exemption for
older persons did not qualify for the exemption even though it
---------------------------------------------------------------------------
furnished services and facilities including:
[A] swimming pool, sauna, shuffle board, laundry room
and a reading room. There is a clubhouse where coffee
is always available, the residents play cards and bingo
and meet to socialize, the resident's club and ladies
club meet and where potluck dinners and holiday
celebrations are held. [C]ounty health officials come
to the park monthly to check blood pressure and perform
glaucoma checks and annually provide for a more
detailed physical. Health authorities also come to
administer flue shots. City bus service is available at
the entrance to the Park and taxi service is available
to one's door. Doctors' offices and a hospital are
located within a one mile radius of the Park.
Educational and other recreational opportunities are
provided in the local community. Hayward, 36 F.3d 832,
at 837.
The Court found that the Park did not qualify for the 55
and older exemption because many of the facilities and services
were not ``specifically tailored to seniors' needs.'' Non-
seniors-only housing, the court reasoned, could provide similar
amenities for its residents. See also, Park Place Home Brokers
v. P-K Mobile Home Park, 773 F.Supp. 46 (N.D. Ohio 1992) and
United States v. Keck, WL 357064 (W.D. Wash. 1990).
Even if HUD does issue its new proposed regulations, two
issues will continue to be a source of confusion for seniors
communities seeking to qualify under the ``significant
facilities and services'' exemption. First, are the services
and facilities ``specifically designed to meet the physical or
social needs of older persons'' or are they simply the types of
services which any landlord might provide? It is difficult, if
not impossible for a senior community to show that its
clubhouse, pool, or exercise room and the other facilities and
service they may provide are distinguishable from those same
activities in a housing complex which allows children or non-
elderly adults. The second issue which will remain is whether
the services and facilities rise to the level of being
``significant'' either in terms of their overall number or in
terms of the use they receive from the members of the elderly
community.
The Legal Counsel for the Elderly Office of the American
Association of Retired Persons (AARP) has actively monitored
administrative actions and judicial decisions enforcing the
seniors-only provision of the Fair Housing Act. AARP reported
that it was:
Unable to find any successful defense of a claim of
exemption for housing for older persons among cases
receiving judicial review. When coupled with widespread
anecdotal evidence of rather arbitrary decisions by
fair housing investigators, the conclusion is
inescapable that implementation of the law has not been
consistent with the flexibility intended by Congress.
Indeed, widespread dissatisfaction with the statute's
enforcement threatens the very viability of the
important new protections provided in the Act. Letter
of the AARP to Chairman Canady, March 14, 1995.
H.R. 660 will allow seniors the opportunity to take
advantage of the exemption for seniors-only housing without
imposing burdensome and costly requirements.
Hearings and Subcommittee Consideration
The Subcommittee on Civil and Constitutional Rights held
two oversight hearings on Fair Housing Issues on September 28
and 30, 1994. Testimony on the issue of the requirement of
``significant facilities and services'' for the exemption for
housing for older persons was received from Representative Clay
Shaw; the Hon. Roberta Achtenberg, Assistant Secretary, Office
of Fair Housing and Equal Opportunity, U.S. Department of
Housing and Urban Development; Lori Van Arsdale, Councilmember,
City of Hemet, California and William Williams, president,
Federation of Mobile Home Owners of Florida, Inc. Additional
materials were submitted from Representative Al McCandless,
Hank Schmitz, a resident of Hemet, California, Sheila S. Dey,
General Counsel, Western Mobile Home Parkowners Association;
Robert H. Elrod, President, National Association of Realtors;
the Hon. Kay Ceniceros, Chairman, Riverside County Board of
Supervisors and Jim Morales, Esq. On March 15, 1995, the
Subcommittee on the Constitution met in open session and
ordered reported the bill H.R. 660 by a voice vote, a quorum
being present.
Committee Consideration
On March 22, 1995, the Committee met in open session and
ordered reported the bill H.R. 660 with an amendment, by a
recorded vote of 26-6, a quorum being present.
Votes of the Committee
The Committee considered the following with recorded votes:
1. Mr. Conyers offered an amendment to strike section 3
which creates a defense against the imposition of money damages
for compliance where a person has relied in good faith on the
application of the exemption relating to housing for older
persons. Mr.P
Conyers' amendment was defeated by a rollcall vote of 7-22,
with 1 member voting present.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Nadler Mr. Moorhead
Mr. Scott Mr. Sensenbrenner
Mr. Watt Mr. Gekas
Mr. Becerra Mr. Coble
Mr. Serrano Mr. Smith (TX)
Ms. Jackson Lee Mr. Gallegly
Mr. Canady
Mr. Inglis
Mr. Goodlatte
Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Schumer
Mr. Boucher
Mr. Bryant (TX)
Mr. Reed
Ms. Lofgren
Present: Mr. Frank
2. Ms. Jackson Lee offered an amendment to require housing
providers who wish to qualify for the exemption for housing for
older persons under the Act to demonstrate intent to provide
such housing by setting forth the appropriate policies and
procedures in the facility or community's governing documents.
Ms. Jackson Lee's amendment was defeated by a rollcall vote of
8-24.
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorhead
Mr. Nadler Mr. Sensenbrenner
Mr. Scott Mr. Gekas
Mr. Watt Mr. Coble
Mr. Becerra Mr. Smith (TX)
Mr. Serrano Mr. Gallegly
Ms. Jackson Lee Mr. Canady
Mr. Inglis
Mr. Goodlatte
Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Frank
Mr. Schumer
Mr. Berman
Mr. Boucher
Mr. Bryant (TX)
Mr. Reed
Ms. Lofgren
3. Motion to report H.R. 660 favorably, as amended, to the
House. The motion was agreed to by a rollcall vote of 26-6.
AYES NAYS
Mr. Hyde Mr. Berman
Mr. Moorhead Mr. Bryant (TX)
Mr. Sensenbrenner Mr. Scott
Mr. McCollum Mr. Watt
Mr. Gekas Mr. Becerra
Mr. Coble Mr. Serrano
Mr. Smith (TX)
Mr. Gallegly
Mr. Canady
Mr. Inglis
Mr. Goodlatte
Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Conyers
Mrs. Schroeder
Mr. Frank
Mr. Schumer
Mr. Boucher
Mr. Reed
Ms. Lofgren
Ms. Jackson Lee
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill H.R. 660, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974.
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 27, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 660, the Housing for Older Persons Act of 1995,
as ordered reported by the House Committee on the Judiciary on
March 22, 1995. CBO estimates that enacting this legislation
would result in no significant cost to the federal government
or to state and local governments. Because enactment of H.R.
660 would not affect direct spending or receipts, pay-as-you-go
procedures would not apply to the bill.
Under the Fair Housing Act, it is unlawful to discriminate
based on family status in the sale or rental of a dwelling.
However, current law affords an exemption for ``housing for
older person'' (age-restricted communities), generally defined
as housing that includes significant facilities and services
specifically designed to meet the physical or social needs of
older persons. H.R. 660 would define this exemption to apply to
housing where at least 80 percent of the units are occupied by
at least one person 55 years of age or older. In addition, the
bill would exempt real estate agents or other persons who acted
in good faith from liability for monetary damages in suits
stemming from the seniors-only provision.
The intent of H.R. 660 is to clarify the meaning of
``housing for older persons.'' This issue has been a source of
housing discrimination lawsuits for a number of years,
involving both the Department of Justice (DOJ) and the
Department of Housing and Urban Development (HUD). It is
possible that H.R. 660 could lead to a reduction in these
lawsuits and thus lower the caseload of DOJ and HUD. Based on
information from these agencies, however, we do not expect that
enacting the bill would have a significant effect on the costs
incurred by DOJ or HUD.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
Statement Required by Pub. L. No. 104-1
Pursuant to Pub. L. No. 104-1, the provisions of this bill
are not applicable to the legislative branch because this bill
applies to housing, for older persons.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the rules of the
House of Representatives, the Committee estimates that H.R. 660
will have no significant inflationary impact on prices and
costs in the national economy.
Section-by-Section Analysis and Discussion
Section 1 sets forth the short title for the legislation,
the ``Housing for Older Persons Act of 1995.''
Section 2 amends subparagraph (C) of section 807(b)(2) of
the Fair Housing Act (42 U.S.C. 3607(b)(2)). This section
deletes the ``significant facilities and services'' requirement
for housing for older persons intended and operated for
occupancy by at least one person 55 years of age or older per
unit. The major inquiry that H.R. 660 requires in order to
determine whether a facility or community qualifies for housing
for older persons is whether, in fact, the community is
comprised of elderly individuals. The housing provider can
demonstrate its intent to provide housing for persons 55 years
of age or older, even if it allows persons under age 55 to
continue to occupy dwelling units or move into the housing
facility and occupy dwelling units, as long as the housing
facility maintains the 80% occupancy threshold.
Subsection (C)(i) retains the exemption for housing that is
``intended and operated for the occupancy of at least 80
percent of the occupied units by at least one person 55 years
of age or older'', but does not require a showing of the
existence of ``significant facilities and services.''
Subsection (C)(ii) requires the housing facility or community
to publish and adhere to ``policies and procedures''
demonstrating the intent to provide housing for occupancy of at
least 80 percent of the occupied units by at least one person
55 years of age or older per unit. This subsection specifically
states that such policies and procedures need not be set forth
in the governing documents of such facility or community.
Subsection (C)(iii) requires the housing facility or
community to comply with rules made by the Secretary of Housing
and Urban Development for the verification of occupancy. The
rules issued by the Secretary must allow for verification by
reliable surveys and affidavits and ``shall include examples of
the types of policies and procedures relevant to a
determination of compliance with the requirement of clause
(ii).'' In addition, this section specifically allows such
surveys and affidavits to be admissible in administrative and
judicial proceedings for the purposes of such verification.
Section 3 creates a defense against the imposition of money
damages for compliance where a person has relied in good faith
on the application of the exemption relating to housing for
older persons. The Committee adopted, by a voice vote, an
amendment by Mr. Frank to allow a person engaged in the
business of residential real estate to make a showing of ``good
faith'' reliance on the application of the exemption if that
person has no actual knowledge that the facility or community
is not eligible for the exemption and the facility or community
has certified to such person, in writing and on oath or
affirmation, that it complies with the requirements for such
exemption.
This section allows an individual to raise a defense which
will prevent the imposition of money damages where he or she
relies, in good faith, on the existence of an exemption for
``housing for older persons'' and it is later found that the
exemption did not apply. This section will preclude an award of
money damages, but does not shield a person from injunctive
relief. This exemption is necessary with respect to real estate
agents because they are in a position of having to rely on the
information given to them by the facility or community claiming
the exemption. Because the exemption contemplates a fact-
intensive showing that the community meets the age and
occupancy requirements, it is not practical to require real
estate agents to conduct this inquiry each time they seek to
list a home, apartment or condo for sale or lease. If a real
estate agent has ``actual knowledge'' that the facility or
community is eligible for the exemption, the good faith
exemption shall not apply.
Agency Views
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, March 15, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This presents the views of the
Department of Justice on H.R. 660, the ``Housing for Older
Persons Act of 1995,'' as ordered reported today by the
Subcommittee on the Constitution. We generally defer to other,
more directly affected agencies with respect to whether this
proposal should be enacted. We do, however, have serious
concerns, as explained below, about two provisions of the
legislation that could be construed as both ``anti-family'' and
`'anti-children.''
1. Section 2 of the bill would amend the ``exemption''
section of the Fair Housing Act (i.e., section 807(b)) to
provide a new definition for ``housing for older persons.''
Under the Fair Housing Act, discrimination on the basis of
familial status is prohibited, with a limited exemption
provided for ``housing for older persons.'' We believe that the
legislation will not add clarity to determinations on whether
housing is or is not ``housing for older persons,'' an issue
that has been a major concern of persons seeking to determine
whether or not a property complies with the housing for older
persons criteria.
Congress enacted civil rights protections for families with
children in housing in response to demonstrated pervasive
discrimination against families with children during
Congressional hearings in 1986 and 1987. See, Hearings before
the Subcommittee on Civil and Constitutional Rights, Committee
on the Judiciary, U.S. House of Representatives, on H.R. 4119,
99th Congress (Serial No. 120), and on H.R. 1158, 100th
Congress (Serial No. 9). See also, H. Rept. 100-711. But while
providing these important protections, Congress also recognized
the need to allow bona fide retirement communities to continue
without the presence of children. See H.R. 1158, 100th
Congress, as introduced.
Existing law provides an exemption for legitimate
retirement communities from compliance with the familial status
antidiscrimination protection in the Fair Housing Act. Two
types of exemptions are provided. First, de facto retirement
communities in which all residents are 62 years of age or older
are exempt. No other requirements except age are necessary to
obtain the exemption.
Second, organized retirement communities that have
``significant facilities and services'' to meet the needs of
their older residents are also exempt. Because these
communities provide significant facilities and services,
flexibility is provided for occupancy by some residents under
55, such as spouses of residents 55 or older. These organized
communities must be intended for occupancy by at least one
person 55 years of age or older per unit, and at least 80
percent of the units must be occupied by at least one person 55
years of age or older.
The Department of Justice strongly opposes the proposed
amendment to existing law. Enactment of section 2 would
severely weaken anti-discrimination protection based on
familial status, and would allow the very proliferation of
``all-adult'' housing facilities the law sought to proscribe.
By enacting protections for families with children,
Congress was responding to proven pervasive discrimination
against families and children. At the same time, Congress
clearly demonstrated its intent to allow housing that was
housing genuinely designed for senior citizens. Both concepts
can be protected, not by amending a major piece of civil rights
legislation, but by clarifying the standards for housing for
older persons. The Administration strongly supports providing
protection and opportunities for families with children, and
strongly supports continuation of this protection. Weakening of
existing law would allow increased discrimination in housing
against families with children.
A proposed regulation soon to be published by the
Department of Housing and Urban Development (HUD), which
interprets the ``significant facilities and services'' portion
of the current 55-and-older exemption, promises to provide the
certainty and clarity that has been lacking in the past.
Following five public hearings around the country and
consideration of over 15,000 written comments on the former
proposed rule describing ``significant facilities and
services,'' HUD is developing a workable standard that will be
sufficiently precise to achieve the level of certainty the
public has demanded, without requiring great expense or
services or facilities that only serve the frail elderly.
Because it addresses the major concerns expressed about
implementation of the Act in this regard, HUD's proposed new
rule should be carefully examined and assessed before any
additional amendments to the Act are considered.
By eliminating the ``significant facilities and services
requirement,'' section 2 would also in effect eliminate the 62-
and-over exemption and dramatically lower the minimum
requirements for housing for older persons. Instead of
requiring that all persons living in the facility be 62 and
over, or that the community provide ``significant facilities
and services'' for its 55 and older residents, section 2 would
require only that one person 55 or older live in 80 percent of
the units, without any requirement that significant facilities
and services be provided for the senior citizen residents.
Thus, under the proposed amendment, more than half the
persons living in a facility designated as ``housing for older
persons'' could be younger than 55, and that facility would not
be required to provide any significant facilities and services
specifically designed to meet the needs of older persons. For
example, assume a 100-unit facility, with two persons per unit,
and 80% of the units occupied by one person 55 or older. Under
the proposed amendment, using this hypothetical example, of the
two hundred residents in the facility, as few as 80 residents
could be 55 or over, while 120 could be under 55.
Exemptions to civil rights laws should be limited, and
created only with great care and deliberation. When Congress
enacted this exemption in 1988, it recognized the legitimate
need of senior citizens to continue to live in retirement
communities. The exemption was crafted to allow exemption for
de facto informal retirement communities, in which everyone was
old, and for organized communities that provided significant
facilities and services to meet the needs of its elderly
residents. The statute provides an alternative way for a
housing provider to meet the requirement for ``housing for
older persons'' if it is impracticable to provide significant
facilities and services.
The Department of Justice recognizes the need to provide
clear standards for housing providers as to what constitutes
``significant facilities and services.'' Towards that end, the
Department of Housing and Urban Development has been conducting
public hearings on this issue to provide additional guidance on
the parameters of that requirement.
2. Section 3 of the bill would amend the Fair Housing Act
to create a ``good faith reliance'' defense against imposition
of money damages.
In order for monetary damages to serve as a deterrent, they
must remain available for use in every case. Adoption of a
``good faith reliance'' standard would allow a willful and
egregious lawbreaker to claim good faith reliance and thus
avoid imposition of damages. Nothing in existing law prevents a
court from considering good faith reliance, yet codifying a
standard into the law would encourage persons to violate the
law by claiming good faith reliance. We think this would be an
undesirable result.
Section 3 would be superfluous if section 2 were enacted.
Under section 2, there would be no need to allow ``good faith
reliance,'' because compliance would be just a matter of
verifying the occupancy status of each unit. The judgment of
whether the facility had ``significant facilities and
services'' would no longer be required. Moreover, if HUD adopts
a final rule providing a flexible and workable approach to the
``significant facilities and services'' problem, there would be
no need for a ``good faith reliance'' defense, because the
needed clarity will have been achieved through interpretation
of the existing statute.
Thank you for the opportunity to present our views on this
proposal. Please let us know if we may be of additional
assistance in this or any other matter. The Office of
Management and Budget has advised that there is no objection
from the standpoint of the Administration's program to the
presentation of this report.
Sincerely,
Kent Markus,
Acting Assistant Attorney General.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 807 OF THE FAIR HOUSING ACT
exemption
Sec. 807. (a) * * *
(b)(1) Nothing in this title limits the applicability of
any reasonable local, State, or Federal restrictions regarding
the maximum number of occupants permitted to occupy a dwelling.
Nor does any provision in this title regarding familial status
apply with respect to housing for older persons.
(2) As used in this section, ``housing for older persons''
means housing--
(A) provided under any State or Federal program that
the Secretary determines is specifically designed and
operated to assist elderly persons (as defined in the
State or Federal program); or
(B) intended for, and solely occupied by, persons 62
years of age or older; or
[(C) intended and operated for occupancy by at least
one person 55 years of age or older per unit. In
determining whether housing qualifies as housing for
older persons under this subsection, the Secretary
shall develop regulations which require at least the
following factors:
[(i) the existence of significant facilities
and services specifically designed to meet the
physical or social needs of older persons, or
if the provision of such facilities and
services is not practicable, that such housing
is necessary to provide important housing
opportunities for older persons; and
[(ii) that at least 80 percent of the units
are occupied by at least one person 55 years of
age or older per unit; and
[(iii) the publication of, and adherence to,
policies and procedures which demonstrate an
intent by the owner or manager to provide
housing for persons 55 years of age or older.]
(C) that meets the following requirements:
(i) The housing is in a facility or community
intended and operated for the occupancy of at
least 80 percent of the occupied units by at
least one person 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 clause (i), whether or not such policies
and procedures are set forth in the governing
documents of such facility or community.
(iii) The housing facility or community
complies with rules made by the Secretary for
the verification of occupancy. Such rules shall
allow for that verification by reliable surveys
and affidavits and shall 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.
* * * * * * *
(5) Good Faith Reliance.--(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 the purposes of this paragraph, a person engaged in
the business of residential real estate transactions may 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 certified to such
person, in writing and on oath or affirmation, that the
facility or community complies with the requirements
for such exemption.