The other Fair Housing category that can cause real estate licensees serious problems is “familial status.” Familial status means children. Unless a building or community qualifies as housing for older persons, it may not discriminate against families with one or more children under18. Familial status protection also applies to pregnant women and anyone with legal custody of a child under 18.

As mentioned above, housing for older persons is exempt from the Fair Housing prohibition against familial status discrimination. There are, however, strings attached to the exemption. Housing is exempt from the familial status discrimination provision if (1) the HUD Secretary has determined that it is specifically designed for and occupied by elderly persons under a Federal, State or local government program; or (2) It is occupied solely by persons who are 62 or older; or (3) It houses at least one person who is 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates an intent to house persons who are 55 or older.

It is, of course, the 55 or older exemption that causes the most problems. For many years after the familial status category was added to the Fair Housing laws in 1988, the law required 55 and older housing to have “significant services and facilities specifically designed for its elderly residents.” That provision proved unworkable and has been eliminated by Congress.

There are now three requirements to qualify for the 55 and older exemption. First, at least 80 percent of the occupied units must be occupied by at least one person 55 years of age or older per unit. Second, the owner or management of the housing facility or community must publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older. Finally, the facility/community must comply with rules issued by the Secretary for verification of occupancy through reliable surveys and affidavits.

Examples of policies and procedure that show intent to provide housing for persons 55 years of age or older include written rules, regulations, lease provisions, deed or other restrictions. They also include the actual practices of the owner, including the kind of advertising used to attract prospective residents. Operators of exempt facilities must have age verification procedures. Birth certificates, driver’s licenses, passports, immigration cards and the like are considered to be reliable for age verification. Self certification in a lease, application affidavit, or other document signed by an adult member of the household will also satisfy the requirement.