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6500 - Consumer Protection
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CHAPTER I--OFFICE OF ASSISTANT SECRETARY FOR EQUAL OPPORTUNITY,
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT
SUBCHAPTER A—FAIR HOUSING *
PART 100—DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT
Subpart A—General
Sec.
100.1
Authority.
100.5
Scope.
100.10
Exemptions.
100.20
Definitions.
Subpart B—Discriminatory Housing Practices
100.50
Real estate practices prohibited.
100.60
Unlawful refusal to sell or rent or to negotiate for the sale or
rental.
100.65
Discrimination in terms, conditions and privileges and in services and
facilities.
100.70
Other prohibited sale and rental conduct.
100.75
Discriminatory advertisements, statements and notices.
100.80
Discriminatory representations on the availability of dwellings.
100.85
Blockbusting.
100.90
Discrimination in the provision of brokerage services.
Subpart C—Discrimination in Residential Real
Estate-Related Transactions
100.110
Discriminatory practices in residential real estate-related
transactions.
100.115
Residential real estate-related transactions.
100.120
Discrimination in the making of loans and in the provision of other
financial assistance.
100.125
Discrimination in the purchasing of loans.
100.130
Discrimination in the terms and conditions for making available loans
or other financial assistance.
100.135
Unlawful practices in the selling, brokering, or appraising of
residential real property.
100.140
General rules.
100.141
Definitions.
100.142
Types of information.
100.143
Appropriate corrective action.
100.144
Scope of privilege.
100.145
Loss of privilege.
100.146
Limited use of privileged information.
100.147
Adjudication.
100.148
Effective date.
Subpart D—Prohibition Against Discrimination Because of Handicap
100.200
Purpose.
100.201
Definitions.
100.202
General prohibitions against discrimination because of handicap.
100.203
Reasonable modifications of existing premises.
100.204
Reasonable accommodations.
100.205
Design and construction requirements.
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Subpart E—Housing for Older Persons
100.300
Purpose.
100.301
Exemption.
100.302
State and federal elderly housing programs.
100.303
62 or over housing.
100.304
55 or over housing.
100.305
80 percent occupancy
100.306
Intent to operate as housing assigned for persons who are age 55 years
of age or older.
100.307
Verification of occupancy.
100.308
Good faith defense against civil money penalties.
Appendix—Housing for older
persons.
Subpart F—Interference, Coercion or Intimidation
100.400
Prohibited interference, coercion or intimidation.
AUTHORITY: 42 U.S.C. 3535(d), 3600-3620.
SOURCE: 54 FR 3283, Jan. 23, 1989, unless otherwise noted.
Subpart A—General
§ 100.1 Authority.
This regulation is issued under the authority of the
Secretary of Housing and Urban Development to administer and enforce
title VIII of the Civil Rights Act of 1968, as amended by the Fair
Housing Amendments Act of 1988 (the Fair Housing Act).
[Codified to 24 C.F.R.
§ 100.1]
§ 100.5 Scope.
(a) It is the policy of the United States to provide,
within constitutional limitations, for fair housing throughout the
United States. No person shall be subjected to discrimination because
of race, color, religion, sex, handicap, familial status, or national
origin in the sale, rental, or advertising of dwellings, in the
provision of brokerage services, or in the availability of residential
real estate-related transactions.
(b) This part provides the Department's interpretation of the
coverage of the Fair Housing Act regarding discrimination related to
the sale or rental of dwellings, the provision of services in
connection therewith, and the availability of residential real
estate-related transactions.
(c) Nothing in this part relieves persons participating in a
federal or federally-assisted program or activity from other
requirements applicable to buildings and dwellings.
[Codified to 24 C.F.R.
§ 100.5]
§ 100.10 Exemptions.
(a) This part does not:
(1) Prohibit a religious organization, association, or society,
or any nonprofit institution or organization operated, supervised or
controlled by or in conjunction with a religious organization,
association, or society, from limiting the sale, rental or occupancy of
dwellings which it owns or operates for other than a commercial purpose
to persons of the same religion, or from giving preference to such
persons, unless membership in such religion is restricted because of
race, color, or national origin;
(2) Prohibit a private club, not in fact open to the public,
which, incident to its primary purpose or purposes, provides lodgings
which it owns or operates for other than a commercial purpose, from
limiting the rental or occupancy of such lodgings to its members or
from giving preference to its members;
(3) Limit the applicability of any reasonable local, state or
federal restrictions regarding the maximum number of occupants
permitted to occupy a dwelling; or
(4) Prohibit conduct against a person because such person has
been convicted by any court of competent jurisdiction of the illegal
manufacture or distribution of a controlled substance as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802).
(b) Nothing in this part regarding discrimination based on familial
status applies with respect to housing for older persons as defined in
subpart E of this part.
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(c) Nothing in this part, other than the prohibitions against
discriminatory advertising, applies to:
(1) The sale or rental of any single family house by an owner,
provided the following conditions are met:
(i) The owner does not own or have any interest in more than
three single family houses at any one time.
(ii) The housing is sold or rented without the use of a real
estate broker, agent or salesperson or the facilities of any person in
the business of selling or renting dwellings. If the owner selling the
house does not reside in it at the time of the sale or was not the most
recent resident of the house prior to such sale, the exemption in this
paragraph (c)(1) of this section applies to only one such sale in any
24-month period.
(2) Rooms or units in dwellings containing living quarters
occupied or intended to be occupied by no more than four families
living independently of each other, if the owner actually maintains and
occupies one of such living quarters as his or her residence.
[Codified to 24 C.F.R.
§ 100.10]
§ 100.20 Definitions.
The terms Department, Fair Housing Act, and Secretary are defined in
24 CFR part 5.
Aggrieved person includes any person who--
(a) Claims to have been injured by a discriminatory housing
practice; or
(b) Believes that such person will be injured by a discriminatory
housing practice that is about to occur.
Broker or Agent includes any person authorized
to perform an action on behalf of another person regarding any matter
related to the sale or rental of dwellings, including offers,
solicitations or contracts and the administration of matters regarding
such offers, solicitations or contracts or any residential real
estate-related transactions.
Discriminatory housing practice means an act that is
unlawful under section 804,
805,
806, or
818 of the Fair Housing Act.
Dwelling means any building, structure or portion thereof
which is occupied as, or designed or intended for occupancy as, a
residence by one or more families, and any vacant land which is offered
for sale or lease for the construction or location thereon of any such
building, structure or portion thereof.
Familial status means one or more individuals (who have
not attained the age of 18 years) being domiciled with--
(a) A parent or another person having legal custody of such
individual or individuals; or
(b) The designee of such parent or other person having such
custody, with the written permission of such parent or other person.
The protections afforded against discrimination on the basis of
familial status shall apply to any person who is pregnant or is in the
process of securing legal custody of any individual who has not
attained the age of 18 years.
Handicap is defined in
§ 100.201.
Person includes one or more individuals, corporations,
partnerships, associations, labor organizations, legal representatives,
mutual companies, joint-stock companies, trusts, unincorporated
organizations, trustees, trustees in cases under title 11 U.S.C.,
receivers, and fiduciaries.
Persons in the business of selling or renting dwellings
means any person who:
(a) Within the preceding twelve months, has participated as
principal in three or more transactions involving the sale or rental of
any dwelling or any interest therein;
(b) Within the preceding twelve months, has participated as agent,
other than in the sale of his or her own personal residence, in
providing sales or rental facilities or sales or rental services in two
or more transactions involving the sale or rental of any dwelling or
any interest therein; or
(c) Is the owner of any dwelling designed or intended for occupancy
by, or occupied by, five or more families.
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State means any of the several states, the District of
Columbia, the Commonwealth of Puerto Rico, or any of the territories
and possessions of the United States.
[Codified 24 C.F.R. § 100.20]
[Section 100.20 amended at 61 Fed. Reg. 5205, February 9,
1996, effective March 11, 1996]
Subpart B—Discriminatory Housing
Practices
§ 100.50 Real estate practices prohibited.
(a) This subpart provides the Department's interpretation of
conduct that is unlawful housing discrimination under
section 804 and
section 806 of the Fair
Housing Act. In general the prohibited actions are set forth under
sections of this subpart which are most applicable to the
discriminatory conduct described. However, an action illustrated in one
section can constitute a violation under sections in the subpart. For
example, the conduct described in § 100.60(b)(3) and (4) would
constitute a violation of § 100.65(a) as well as § 100.60(a).
(b) It shall be unlawful to:
(1) Refuse to sell or rent a dwelling after a bona fide
offer has been made, or to refuse to negotiate for the sale or
rental of a dwelling because of race, color, religion, sex, familial
status, or national origin, or to discriminate in the sale or rental of
a dwelling because of handicap.
(2) Discriminate in the terms, conditions or privileges of sale
or rental of a dwelling, or in the provision of services or facilities
in connection with sales or rentals, because of race, color, religion,
sex, handicap, familial status, or national origin.
(3) Engage in any conduct relating to the provision of housing
which otherwise makes unavailable or denies dwellings to persons
because of race, color, religion, sex, handicap, familial status, or
national origin.
(4) Make, print or publish, or cause to be made, printed or
published, any notice, statement or advertisement with respect to the
sale or rental of a dwelling that indicates any preference, limitation
or discrimination because of race, color, religion, sex, handicap,
familial status, or national origin, or an intention to make any such
preference, limitation, or discrimination.
(5) Represent to any person because of race, color, religion,
sex, handicap, familial status, or national origin that a dwelling is
not available for sale or rental when such dwelling is in fact
available.
(6) Engage in blockbusting practices in connection with the sale
or rental of dwellings because of race, color, religion, sex, handicap,
familial status, or national origin.
(7) Deny access to or membership or participation in, or to
discriminate against any person in his or her access to or membership
or participation in, any multiple-listing service, real estate brokers'
association, or other service organization or facility relating to the
business of selling or renting a dwelling or in the terms or conditions
or membership or participation, because of race, color, religion, sex,
handicap, familial status, or national origin.
(c) The application of the Fair Housing Act with respect to persons
with handicaps is discussed in subpart D of this part.
[Codified to 24 C.F.R.
§ 100.50]
§ 100.60 Unlawful refusal to sell or rent or to negotiate for
the sale or rental.
(a) It shall be unlawful for a person to refuse to sell or rent a
dwelling to a person who has made a bona fide offer, because
of race, color, religion, sex, familial status, or national origin or
to refuse to negotiate with a person for the sale or rental or a
dwelling because of race, color, religion, sex, familial status, or
national origin, or to discriminate against any person in the sale or
rental of a dwelling because of handicap.
(b) Prohibited actions under this section include, but are not
limited to:
{{2-29-96 p.7498.11}}
(1) Failing to accept or consider a bona fide offer
because of race, color, religion, sex, handicap, familial status, or
national origin.
(2) Refusing to sell or rent a dwelling to, or to negotiate for
the sale or rental of a dwelling with, any person because of race,
color, religion, sex, handicap, familial status, or national origin.
(3) Imposing different sales prices or rental charges for the
sale or rental of a dwelling upon any person because of race, color,
religion, sex, handicap, familial status, or national origin.
(4) Using different qualification criteria or applications, or
sale or rental standards or procedures, such as income standards,
application requirements, application fees, credit analysis or sale or
rental approval procedures or other requirements, because of race,
color, religion, sex, handicap, familial status, or national origin.
(5) Evicting tenants because of their race, color, religion, sex,
handicap, familial status, or national origin or because of the race,
color, religion, sex, handicap, familial status, or national origin of
a tenant's guest.
[Codified to 24 C.F.R.
§ 100.60]
§ 100.65 Discrimination in terms, conditions and privileges and
in services and facilities.
(a) It shall be unlawful, because of race, color, religion, sex,
handicap, familial status, or national origin, to impose different
terms, conditions or privileges relating to the sale or rental of a
dwelling or to deny or limit services or facilities in connection with
the sale or rental of a dwelling.
(b) Prohibited actions under this section include, but are not
limited to:
(1) Using different provisions in leases or contracts of sale,
such as those relating to rental charges, security deposits and the
terms of a lease and those relating to down payment and closing
requirements, because of race, color, religion, sex, handicap, familial
status, or national origin.
(2) Failing or delaying maintenance or repairs of sale or rental
dwellings because of race, color, religion, sex, handicap, familial
status, or national origin.
(3) Failing to process an offer for the sale or rental of a
dwelling or to communicate an offer accurately because of race, color,
religion, sex, handicap, familial status, or national origin.
(4) Limiting the use of privileges, services or facilities
associated with a dwelling because of race, color, religion, sex,
handicap, familial status, or national origin of an owner, tenant or a
person associated with him or her.
(5) Denying or limiting services or facilities in connection with
the sale or rental of a dwelling, because a person failed or refused to
provide sexual favors.
[Codified to 24 C.F.R.
§ 100.65]
§ 100.70 Other prohibited sale and rental conduct.
(a) It shall be unlawful, because of race, color, religion, sex,
handicap, familial status, or national origin to restrict or attempt to
restrict the choices of a person by word or conduct in connection with
seeking, negotiating for, buying or renting a dwelling so as to
perpetuate, or tend to perpetuate, segregated housing patterns, or to
discourage or obstruct choices in a community, neighborhood or
development.
(b) It shall be unlawful, because of race, color, religion, sex,
handicap, familial status, or national origin to engage in any conduct
relating to the provision of housing or of services and facilities in
connection therewith that otherwise makes unavailable or denies
dwellings to persons.
(c) Prohibited actions under paragraph (a) of this section, which
are generally referred to as unlawful steering practices, include, but
are not limited to:
(1) Discouraging any person from inspecting, purchasing or
renting a dwelling because of race, color, religion, sex, handicap,
familial status, or national origin, or because
{{10-30-92 p.7498.12}}of the race, color,
religion, sex, handicap, familial status, or national origin of persons
in a community, neighborhood or development.
(2) Discouraging the purchase or rental of a dwelling because of
race, color, religion, sex, handicap, familial status, or national
origin by exaggerating drawbacks or failing to inform any person of
desirable features of a dwelling or of a community, neighborhood, or
development.
(3) Communicating to any prospective purchaser that he or she
would not be comfortable or compatible with existing residents of a
community, neighborhood or development because of race, color,
religion, sex, handicap, familial status, or national origin.
(4) Assigning any person to a particular section of a community,
neighborhood or development, or to a particular floor of a building,
because of race, color, religion, sex, handicap, familial status, or
national origin.
(d) Prohibited activities relating to dwellings under paragraph (b)
of this section include, but are not limited to:
(1) Discharging or taking other adverse action against an
employee, broker or agent because he or she refused to participate in a
discriminatory housing practice.
(2) Employing codes or other devices to segregate or reject
applicants, purchasers or renters, refusing to take or to show listings
of dwellings in certain areas because of race, color, religion, sex,
handicap, familial status, or national origin, or refusing to deal with
certain brokers or agents because they or one or more of their clients
are of a particular race, color, religion, sex, handicap, familial
status, or national origin.
(3) Denying or delaying the processing of an application made by
a purchaser or renter or refusing to approve such a person for
occupancy in a cooperative or condominium dwelling because of race,
color, religion, sex, handicap, familial status, or national origin.
(4) Refusing to provide municipal services or property or hazard
insurance for dwellings or providing such services or insurance
differently because of race, color, religion, sex, handicap, familial
status, or national origin.
[Codified to 24 C.F.R.
§ 100.70]
§ 100.75 Discriminatory advertisements, statements and notices.
(a) It shall be unlawful to make print or publish, or cause to be
made, printed or published, any notice, statement or advertisement with
respect to the sale or rental of a dwelling which indicates any
preference, limitation or discrimination because of race, color,
religion, sex, handicap, familial status, or national origin, or an
intention to make any such preference, limitation or discrimination.
(b) The prohibitions in this section shall apply to all written or
oral notices or statements by a person engaged in the sale or rental of
a dwelling. Written notices and statements include any application,
flyers, brochures, deeds, signs, banners, posters, billboards or any
documents used with respect to the sale or rental of a dwelling.
(c) Discriminatory notices, statements and advertisements include,
but are not limited to:
(1) Using words, phrases, photographs, illustrations, symbols or
forms which convey that dwellings are available or not available to a
particular group of persons because of race, color, religion, sex,
handicap, familial status or national origin.
(2) Expressing to agents, brokers, employees, prospective sellers
or renters or any other person a preference for or limitation on any
purchaser or renter because of race, color, religion, sex, handicap,
familial status, or national origin of such persons.
(3) Selecting media or locations for advertising the sale or
rental of dwellings which deny particular segments of the housing
market information about housing opportunities because of race, color,
religion, sex, handicap, familial status, or national origin.
(4) Refusing to publish advertising for the sale or rental of
dwellings or requiring different charges or terms for such advertising
because of race, color, religion, sex, handicap, familial status or
national origin.
{{10-30-92 p.7498.13}}
(d) 24 CFR Part 109 provides information to assist persons to
advertise dwellings in a nondiscriminatory manner and describes the
matters the Department will review in evaluating compliance with the
Fair Housing Act and in investigating complaints alleging
discriminatory housing practices involving advertising.
[Codified to 24 C.F.R. § 100.75]
§ 100.80 Discriminatory representations on the availability of
dwellings.
(a) It shall be unlawful, because of race, color, religion, sex,
handicap, familial status, or national origin, to provide inaccurate or
untrue information about the availability of dwellings for sale or
rental.
(b) Prohibited actions under this section include, but are not
limited to:
(1) Indicating through words or conduct that a dwelling which is
available for inspection, sale, or rental has been sold or rented,
because of race, color, religion, sex, handicap, familial status, or
national origin.
(2) Representing that covenants or other deed, trust or lease
provisions which purport to restrict the sale or rental of dwellings
because of race, color, religion, sex, handicap, familial status, or
national origin preclude the sale or rental of a dwelling to a person.
(3) Enforcing covenants or other deed, trust, or lease provisions
which preclude the sale or rental of a dwelling to any person because
of race, color, religion, sex, handicap, familial status or national
origin.
(4) Limiting information, by word or conduct, regarding suitably
priced dwellings, available for inspection, sale or rental, because of
race, color, religion, sex, handicap, familial status, or national
origin.
(5) Providing false or inaccurate information regarding the
availability of a dwelling for sale or rental to any person, including
testers, regardless of whether such person is actually seeking housing,
because of race, color, religion, sex, handicap, familial status, or
national origin.
[Codified to 24 C.F.R.
§ 100.80]
§ 100.85 Blockbusting.
(a) It shall be unlawful, for profit, to induce or attempt to
induce a person to sell or rent a dwelling by representations regarding
the entry or prospective entry into the neighborhood of a person or
persons of a particular race, color, religion, sex, familial status, or
national origin or with a handicap.
(b) In establishing a discriminatory housing practice under this
section it is not necessary that there was in fact profit as long as
profit was a factor for engaging in the blockbusting activity.
(c) Prohibited actions under this section include, but are not
limited to:
(1) Engaging, for profit, in conduct (including uninvited
solicitations for listings) which conveys to a person that a
neighborhood is undergoing or is about to undergo a change in the race,
color, religion, sex, handicap, familial status, or national origin of
persons residing in it, in order to encourage the person to offer a
dwelling for sale or rental.
(2) Encouraging, for profit, any person to sell or rent a
dwelling through assertions that the entry or prospective entry of
persons of a particular race, color, religion, sex, familial status, or
national origin, or with handicaps, can or will result in undesirable
consequences for the project, neighborhood or community, such as a
lowering of property values, an increase in criminal or antisocial
behavior, or a decline in the quality of schools or other services or
facilities.
[Codified to 24 C.F.R.
§ 100.85]
§ 100.90 Discrimination in the provision of brokerage services.
(a) It shall be unlawful to deny any person access to or membership
or participation in any multiple listing service, real estate brokers'
organization or other service, organization,
{{10-30-92 p.7498.14}}or facility relating
to the business of selling or renting dwellings, or to discriminate
against any person in the terms or conditions of such access,
membership or participation, because of race, color, religion, sex,
handicap, familial status, or national origin.
(b) Prohibited actions under this section include, but are not
limited to:
(1) Setting different fees for access to or membership in a
multiple listing service because of race, color, religion, sex,
handicap, familial status, or national origin.
(2) Denying or limiting benefits accruing to members in a real
estate brokers' organization because of race, color, religion, sex,
handicap, familial status, or national origin.
(3) Imposing different standards or criteria for membership in a
real estate sales or rental organization because of race, color,
religion, sex, handicap, familial status, or national origin.
(4) Establishing geographic boundaries or office location or
residence requirements for access to or membership or participation in
any multiple listing service, real estate brokers' organization or
other service, organization or facility relating to the business of
selling or renting dwellings, because of race, color, religion, sex,
handicap, familial status, or national origin.
[Codified to 24 C.F.R. § 100.90]
Subpart C—Discrimination in Residential Real
Estate-Related Transactions
§ 100.110 Discriminatory practices in residential real
estate-related transactions.
(a) This subpart provides the Department's interpretation of the
conduct that is unlawful housing discrimination under
section 805 of the Fair
Housing Act.
(b) It shall be unlawful for any person or other entity whose
business includes engaging in residential real estate-related
transactions to discriminate against any person in making available
such a transaction, or in the terms or conditions of such a
transaction, because of race, color, religion, sex, handicap, familial
status, or national origin.
[Codified to 24 C.F.R.
§ 100.110]
§ 100.115 Residential real estate-related transactions.
The term residential real estate-related transactions
means:
(a) The making or purchasing of loans or providing other financial
assistance--
(1) For purchasing, constructing, improving, repairing or
maintaining a dwelling; or
(2) Secured by residential real estate; or
(b) The selling, brokering or appraising of residential real
property.
[Codified to 24 C.F.R.
§ 100.115]
§ 100.120 Discrimination in the making of loans and in the
provisions of other financial assistance.
(a) It shall be unlawful for any person or entity whose business
includes engaging in residential real estate-related transactions to
discriminate against any person in making available loans or other
financial assistance for a dwelling, or which is or is to be secured by
a dwelling, because of race, color, religion, sex, handicap, familial
status, or national origin.
(b) Prohibited practices under this section include, but are not
limited to, failing or refusing to provide to any person, in connection
with a residential real estate-related transaction, information
regarding the availability of loans or other financial assistance,
application requirements, procedures or standards for the review and
approval of loans or financial assistance, or providing information
which is inaccurate or different from that provided others, because of
race, color, religion, sex, handicap familial status, or national
origin.
{{8-31-98 p.7498.15}}
[Codified to 24 C.F.R.
§ 100.120]
§ 100.125 Discrimination in the purchasing of loans.
(a) It shall be unlawful for any person or entity engaged in the
purchasing of loans or other debts or securities which support the
purchase, construction, improvement, repair or maintenance of a
dwelling, or which are secured by residential real estate, to refuse to
purchase such loans, debts, or securities, or to impose different terms
or conditions for such purchases, because of race, color, religion,
sex, handicap, familial status, or national origin.
(b) Unlawful conduct under this section includes, but is not
limited to:
(1) Purchasing loans or other debts or securities which relate to
or which are secured by dwellings in certain communities or
neighborhoods but not in others because of the race, color, religion,
sex, handicap, familial status, or national origin of persons in such
neighborhoods or communities.
(2) Pooling or packaging loans or other debts or securities which
relate to, or which are secured by, dwellings differently because of
race, color, religion, sex, handicap, familial status, or national
origin.
(3) Imposing or using different terms or conditions on the
marketing or sale of securities issued on the basis of loans or other
debts or securities which relate to, or which are secured by, dwellings
because of race, color, religion, sex, handicap, familial status, or
national origin.
(c) This section does not prevent consideration, in the purchasing
of loans, of factors justified by business necessity, including
requirements of federal law, relating to a transaction's financial
security or to protection against default or reduction of the value of
the security. Thus, this provision would not preclude considerations
employed in normal and prudent transactions, provided that no such
factor may in any way relate to race, color, religion, sex, handicap,
familial status, or national origin.
[Codified to 24 C.F.R.
§ 100.125]
§ 100.130 Discrimination in the terms and conditions for making
available loans or other financial assistance.
(a) It shall be unlawful for any person or entity engaged in the
making of loans or in the provision of other financial assistance
relating to the purchase, construction, improvement, repair or
maintenance of dwellings or which are secured by residential real
estate to impose different terms or conditions for the availability of
such loans or other financial assistance because of race, color,
religion, sex, handicap, familial status, or national origin.
(b) Unlawful conduct under this section includes, but is not
limited to:
(1) Using different policies, practices or procedures in
evaluating or in determining creditworthiness of any person in
connection with the provision of any loan or other financial assistance
for a dwelling or for any loan or other financial assistance which is
secured by residential real estate because of race, color, religion,
sex, handicap, familial status, or national origin.
(2) Determining the type of loan or other financial assistance to
be provided with respect to a dwelling, or fixing the amount, interest
rate, duration or other terms for a loan or other financial assistance
for a dwelling or which is secured by residential real estate, because
of race, color, religion, sex, handicap, familial status, or national
origin.
[Codified to 24 C.F.R.
§ 100.130]
§ 100.135 Unlawful practices in the selling, brokering, or
appraising of residential real property.
(a) It shall be unlawful for any person or other entity whose
business includes engaging in the selling, brokering or appraising of
residential real property to discriminate against any person in making
available such services, or in the performance of such services,
because of race, color, religion, sex, handicap, familial status, or
national origin.
(b) For the purposes of this section, the term appraisal means an
estimate or opinion of the value of a specified residential real
property made in a business context in connection with the sale,
rental, financing or refinancing of a dwelling or in connection with
any
{{8-31-98 p.7498.16}}activity that
otherwise affects the availability of a residential real estate-related
transaction, whether the appraisal is oral or written, or transmitted
formally or informally. The appraisal includes all written comments and
other documents submitted as support for the estimate or opinion of
value.
(c) Nothing in this section prohibits a person engaged in the
business of making or furnishing appraisals of residential real
property from taking into consideration factors other than race, color,
religion, sex, handicap, familial status, or national origin.
(d) Practices which are unlawful under this section include, but
are not limited to, using an appraisal of residential real property in
connection with the sale, rental, or financing of any dwelling where
the person knows or reasonably should know that the appraisal
improperly takes into consideration race, color, religion, sex,
handicap, familial status, or national origin.
[Codified to 24 C.F.R. § 100.135]
§ 100.140 General rules.
(a) Voluntary self-testing and correction. The report or
results of a self-test a lender voluntarily conducts or authorizes are
privileged as provided in this subpart if the lender has taken or is
taking appropriate corrective action to address likely violations
identified by the self-test. Data collection required by law or any
governmental authority (federal, state, or local) is not voluntary.
(b) Other privileges. This subpart does not abrogate any
evidentiary privilege otherwise provided by law.
[Codified to 24 C.F.R. § 100.140]
[Section 100.140 added at 62 Fed. Reg. 66432, December 18, 1998,
effective January 30, 1998]
§ 100.141 Definitions.
As used in this subpart:
Lender means a person who engages in a residential real
estate-related lending transaction.
Residential real estate-related lending transaction means
the making of a loan:
(1) For purchasing, constructing, improving, repairing, or
maintaining a dwelling; or
(2) Secured by residential real estate.
Self-test means any program, practice or study a lender
voluntarily conducts or authorizes which is designed and used
specifically to determine the extent or effectiveness of compliance
with the Fair Housing Act. The self-test must create data or factual
information that is not available and cannot be derived from loan
files, application files, or other residential real estate-related
lending transaction records. Self-testing includes, but is not limited
to, using fictitious credit applicants (testers) or conducting surveys
of applicants or customers, nor is it limited to the pre-application
stage of loan processing.
[Codified to 24 C.F.R. § 100.141]
[Section 100.141 added at 62 Fed. Reg. 66432, December 18, 1998,
effective January 30, 1998]
§ 100.142 Types of information.
(a) The privilege under this subpart covers:
(1) The report or results of the self-test;
(2) Data or factual information created by the self-test;
(3) Workpapers, draft documents and final documents;
(4) Analyses, opinions, and conclusions if they directly result
from the self-test report or results.
(b) The privilege does not cover:
(1) Information about whether a lender conducted a self-test, the
methodology used or scope of the self-test, the time period covered by
the self-test or the dates it was conducted;
{{8-31-98 p.7498.17}}
(2) Loan files and application files, or other residential real
estate-related lending transaction records (e.g., property appraisal
reports, loan committee meeting minutes or other documents reflecting
the basis for a decision to approve or deny a loan application, loan
policies or procedures, underwriting standards, compensation records)
and information or data derived from such files and records, even if
such data has been aggregated, summarized or reorganized to facilitate
analysis.
[Codified to 24 C.F.R. § 100.142]
[Section 100.142 added at 62 Fed. Reg. 66432, December 18, 1998,
effective January 30, 1998]
§ 100.143 Appropriate corrective action.
(a) The report or results of a self-test are privileged as provided
in this subpart if the lender has taken or is taking appropriate
corrective action to address likely violations identified by the
self-test. Appropriate corrective action is required when a self-test
shows it is more likely than not that a violation occurred even though
no violation was adjudicated formally.
(b) A lender must take action reasonably likely to remedy the cause
and effect of the likely violation and must:
(1) Identify the policies or practices that are the likely cause
of the violation, such as inadequate or improper lending policies,
failure to implement established policies, employee conduct, or other
causes; and
(2) Assess the extent and scope of any likely violation, by
determining which areas of operation are likely to be affected by those
policies and practices, such as stages of the loan application process,
types of loans, or the particular branch where the likely violation has
occurred. Generally, the scope of the self-test governs the scope of
the appropriate corrective action.
(c) Appropriate corrective action may include both prospective and
remedial relief, except that to establish a privilege under this
subpart:
(1) A lender is not required to provide remedial relief to a
tester in a self-test;
(2) A lender is only required to provide remedial relief to an
applicant identified by the self-test as one whose rights were more
likely than not violated;
(3) A lender is not required to provide remedial relief to a
particular applicant if the statute of limitations applicable to the
violation expired before the lender obtained the results of the
self-test or the applicant is otherwise ineligible for such relief.
(d) Depending on the facts involved, appropriate corrective action
may include, but is not limited to, one or more of the following:
(1) If the self-test identifies individuals whose applications
were inappropriately processed, offering to extend credit if the
applications were improperly denied; compensating such persons for any
damages, both out-of-pocket and compensatory;
(2) Correcting any institutional policies or procedures that may
have contributed to the likely violation, and adopting new policies as
appropriate;
(3) Identifying, and then training and/or disciplining the
employees involved;
(4) Developing outreach programs, marketing strategies, or loan
products to serve more effectively the segments of the lender's market
that may have been affected by the likely violation; and
(5) Improving audit and oversight systems to avoid a recurrence
of the likely violations.
(e) Determination of appropriate corrective action is fact-based.
Not every corrective measure listed in paragraph (d) of this section
need be taken for each likely violation.
(f) Taking appropriate corrective action is not an admission by a
lender that a violation occurred.
[Codified to 24 C.F.R. § 100.143]
[Section 100.143 added at 62 Fed. Reg. 66432, December 18,
1998, effective January 30, 1998]
{{8-31-98 p.7498.18}}
§ 100.144 Scope of privilege.
The report or results of a self-test may not be obtained or used by
an aggrieved person, complainant, department or agency in any:
(a) Proceeding or civil action in which a violation of the Fair
Housing Act is alleged; or
(b) Examination or investigation relating to compliance with the
Fair Housing Act.
[Codified to 24 C.F.R. § 100.144]
[Section 100.144 added at 62 Fed. Reg. 66432, December 18, 1998,
effective January 30, 1998]
§ 100.145 Loss of privilege.
(a) The self-test report or results are not privileged under this
subpart if the lender or person with lawful access to the report or
results:
(1) Voluntarily discloses any part of the report or results or
any other information privileged under this subpart to any aggrieved
person, complainant, department, agency, or to the public; or
(2) Discloses the report or results or any other information
privileged under this subpart as a defense to charges a lender violated
the Fair Housing Act; or
(3) Fails or is unable to produce self-test records or
information needed to determine whether the privilege applies.
(b) Disclosures or other actions undertaken to carry out
appropriate corrective action do not cause the lender to lose the
privilege.
[Codified to 24 C.F.R. § 100.145]
[Section 100.145 added at 62 Fed. Reg. 66432, December 18, 1998,
effective January 30, 1998]
§ 100.146 Limited use of privileged information.
Notwithstanding § 100.145, the self-test report or results may be
obtained and used by an aggrieved person, applicant, department or
agency soley to determine a penalty or remedy after the violation of
the Fair Housing Act has been adjudicated or admitted. Disclosures for
this limited purpose may be used only for the particular proceeding in
which the adjudication or admission is made. Information disclosed
under this section remains otherwise privileged under this subpart.
[Codified to 24 C.F.R. § 100.146]
[Section 100.146 added at 62 Fed. Reg. 66433, December 18, 1998,
effective January 30, 1998]
§ 100.147 Adjudication.
An aggrieved person, complainant, department or agency that
challenges a privilege asserted under § 100.144 may seek a
determination of the existence and application of that privilege in:
(a) A court of competent jurisdiction; or
(b) An administrative law proceeding with appropriate jurisdiction.
[Codified to 24 C.F.R. § 100.147]
[Section 100.147 added at 62 Fed. Reg. 66433, December 18,
1998, effective January 30, 1998]
{{10-31-08 p.7498.19}}
§ 100.148 Effective date.
The privilege under this subpart applies to self-tests conducted
both before and after January 30, 1998, except that a self-test
conducted before January 30, 1998 is not privileged:
(a) If there was a court action or administrative proceeding before
January 30, 1998, including the filing of a complaint alleging a
violation of the Fair Housing Act with the Department or a
substantially equivalent state or local agency; or
(b) If any part of the report or results were disclosed before
January 30, 1998 to any aggrieved person, complainant, department or
agency, or to the general public.
[Codified to 24 C.F.R. § 100.148]
[Section 100.148 added at 62 Fed. Reg. 66433, December 18, 1998,
effective January 30, 1998]
Subpart D—Prohibition Against Discrimination Because of
Handicap
§ 100.200 Purpose.
The purpose of this subpart is to effectuate sections 6(a) and (b)
and 15 of the Fair Housing Amendments Act of 1988.
[Codified to 24 C.F.R.
§ 100.200]
§ 100.201 Definitions.
As used in this subpart:
§ 100.201a), CABO/ANSI A117.1--1992 (incorporated by reference at
§ 100.201a). ANSI A117.1--1986 (incorporated by reference at
§ 100.201a), or a comparable standard is deemed
"accessible" within the meaning of this paragraph.
Accessible route means a continuous unobstructed path
connecting accessible elements and spaces in a building or within a
site that can be negotiated by a person with a severe disability using
a wheelchair and that is also safe for and usable by people with other
disabilities. Interior accessible routes may include corridors, floors,
ramps, elevators, and lifts. Exterior accessible routes may include
parking access aisles, curb ramps, walks, ramps, and lifts. A route
that complies with the appropriate requirements of ICC/ANSI
A117.1--2003 (incorporated by reference at § 100.201a), ICC/ANSI
A117.1--1998 (incorporated by reference at § 100.201a), CABO/ANSI
A117.1--1992, ANSI A117.1--1986 (incorporated by reference at
§ 100.201a), or a comparable standard is an "accessible
route."
Accessible, when used with respect to the public and
common use areas of a building containing covered multifamily
dwellings, means that the public or common use areas of the building
can be approached, entered, and used by individuals with physical
disabilities. The phrase "readily accessible to and usable
by" is synonymous with accessible. A public or common use area
that complies with the appropriate requirements of ICC/ANSI
A117.1--1986 (incorporated by reference at § 100.201a), ANSI
A117.1--2003 (incorporated by reference at § 100.201a), ICC/ANSI
A117.1--1998 (incorporated by reference at
Building means a structure, facility or portion thereof
that contains or serves one or more dwelling units.
Building entrance on an accessible route means an
accessible entrance to a building that is connected by an accessible
route to public transportation stops, to accessible parking and
passenger loading zones, or to public streets or sidewalks, if
available. A building entrance that complies with ICC/ANSI A117.1--2003
(incorporated by reference at § 100.201a), ICC/ANSI A117.1--1998
(incorporated by reference at § 100.201a), CABO/ANSI A117.1--1992
(incorporated by reference at § 100.201a), or a comparable standard
complies with the requirements of this paragraph.
Common use areas means rooms, spaces or elements inside
or outside of a building that are made available for the use of
residents of a building or the guests thereof. These areas include
hallways, lounges, lobbies, laundry rooms, refuse rooms, mail rooms,
recreational areas and passageways among and between
buildings.
{{10-31-08 p.7498.20}}
Controlled substance means any drug or other substance,
or immediate precursor included in the definition in section 102 of the
Controlled Substances Act (21 U.S.C. 802).
Covered multi/family dwellings means buildings consisting
of 4 or more dwelling units if such buildings have one or more
elevators; and ground floor dwelling units in other buildings
consisting of 4 or more dwelling units.
Dwelling unit means a single unit of residence for a
family or one or more persons. Examples of dwelling units include: a
single family home; an apartment unit within an apartment building; and
in other types of dwellings in which sleeping accommodations are
provided but toileting or cooking facilities are shared by occupants of
more than one room or portion of the dwelling, rooms in which people
sleep. Examples of the latter include dormitory rooms and sleeping
accommodations in shelters intended for occupancy as a residence for
homeless persons.
Entrance means any access point to a building or portion
of a building used by residents for the purpose of entering.
Exterior means all areas of the premises outside of an
individual dwelling unit.
First occupancy means a building that has never before
been used for any purpose.
Ground floor means a floor of a building with a building
entrance on an accessible route. A building may have more than one
ground floor.
Handicap means, with respect to a person, a physical or
mental impairment which substantially limits one or more major life
activities; a record of such an impairment; or being regarded as having
such an impairment. This term does not include current, illegal use of
or addiction to a controlled substance. For purposes of this part, an
individual shall not be considered to have a handicap solely because
that individual is a transvestite. As used in this definition:
(a) Physical or mental impairment includes:
(1) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: Neurological; musculoskeletal; special sense
organs; respiratory, including speech organs; cardiovascular;
reproductive; disgestive; genito-urinary; hemic and lymphatic; skin;
and endocrine; or
(2) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or
mental impairment includes, but is not limited to, such
diseases and conditions as orthopedic, visual, speech and hearing
impairments, cerebral palsy, autism, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, Human
Immunodeficiency Virus infection, mental retardation, emotional
illness, drug addiction (other than addiction caused by current,
illegal use of a controlled substance) and alcoholism.
(b) Major life activities means functions such as caring
for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working.
(c) Has a record of such an impairment means has a
history of, or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life activities.
(d) Is regarded as having an impairment means:
(1) Has a physical or mental impairment that does not
substantially limit one or more major life activities but that is
treated by another person as constituting such a limitation;
(2) Has a physical or mental impairment that substantially limits
one or more major life activities only as a result of the attitudes of
others toward such impairment; or
(3) Has none of the impairments defined in paragraph (a) of this
definition but is treated by another person as having such an
impairment.
Interior means the spaces, parts, components or elements
of an individual dwelling unit.
Modification means any change to the public or common use
areas of a building or any change to a dwelling unit.
Premises means the interior or exterior spaces, parts,
components or elements of a building, including individual dwelling
units and the public and common use areas of a building.
{{10-31-08 p.7498.21}}
Public use areas means interior or exterior rooms or
spaces of a building that are made available to the general public.
Public use may be provided at a building that is privately or publicly
owned.
Site means a parcel of land bounded by a property line or
a designated portion of a public right of way.
[Codified to 24 C.F.R. § 100.201]
[Section 100.201 amended at 69 Fed. Reg. 18803, April 9, 2004; 73
Fed. Reg. 63615, October 24, 2008, effective November 24,
2008]
§ 100.201a Incorporation by reference.
(a) The following standards are incorporated by reference into 24
CFR part 100 pursuant to 5 U.S.C. 552(a) and 1 CFR part 51, as though
set forth in full. The incorporation by reference of these standards
has been approved by the Director of the Federal Register. The effect
of compliance with these standards is as stated in 24 CFR 100.205.
(b) The addresses of organizations from which the referenced
standards can be obtained appear below:
(1) American National Standard: Accessible and Usable Buildings
and Facilities, 2003 edition, (ICC/ANSI A117.1--2003), may be obtained
from the International Code Council, 500 New Jersey Avenue, NW., 6th
Floor, Washington, DC 20001--2070, telephone number 1--888--422--7233,
http://www.iccsafe.org/e/category.html.
(2) American National Standard: Accessible and Usable Buildings
and Facilities, 1998 edition, (ICC/ANSI A117.1--1998), may be obtained
from the International Code Council, 500 New Jersey Avenue, NW., 6th
Floor, Washington, DC 20001--2070, telephone number 1--888--422--7233,
http://www.iccsafe.org/e/category.html.
(3) American National Standard: Accessible and Usable Buildings
and Facilities, 1992 edition, (CABO/ANSI A117.1--1992), may be obtained
from the International Code Council, 500 New Jersey Avenue, NW., 6th
Floor, Washington, DC 20001--2070, telephone number 1--888--422--7233,
http://www.iccsafe.org/e/category.html.
(4) American National Standard for Buildings and Facilities:
Providing Accessibility and Usability for Physically Handicapped
People, 1986 edition, (ANSI A117.1--1986) may be obtained from Global
Engineering Documents, 15 Inverness Way East, Englewood, CO 80112,
telephone number 1--800--854--7179, global.ihs.com.
(c) The 1986, 1992, 1998, and 2003 editions of ANSI A117.1 may be
inspected at the Department of Housing and Urban Development, 451
Seventh Street, SW., Room 5240, Washington, DC 20410--0001, telephone
number 202--708--2333.
[Codified to 24 CFR § 100.201a]
[Section 100.201a added at 73 Fed. Reg. 63615, October 24, 2008,
effective November 24, 2008]
§ 100.202 General prohibitions against discrimination because of
handicap.
(a) It shall be unlawful to discriminate in the sale or rental, or
to otherwise make unavailable or deny, a dwelling to any buyer or
renter because of a handicap of--
(1) That buyer or renter;
(2) A person residing in or intending to reside in that dwelling
after it is so sold, rented, or made available; or
(3) Any person associated with that person.
(b) It shall be unlawful to discriminate against any person in the
terms, conditions, or privileges of the sale or rental of a dwelling,
or in the provision of services or facilities in connection with such
dwelling, because of a handicap of--
(1) That buyer or renter;
(2) A person residing in or intending to reside in that dwelling
after it is so sold, rented, or made available; or
{{10-31-08 p.7498.22}}
(3) Any person associated with that person.
(c) It shall be unlawful to make an inquiry to determine whether an
applicant for a dwelling, a person intending to reside in that dwelling
after it is so sold, rented or made available, or any person associated
with that person, has a handicap or to make inquiry as to the nature or
severity of a handicap of such person. However, this paragraph does not
prohibit the following inquiries, provided these inquiries are made of
all applicants, whether or not they have handicaps:
(1) Inquiry into an applicant's ability to meet the requirements
of ownership or tenancy;
(2) Inquiry to determine whether an applicant is qualified for a
dwelling available only to persons with handicaps or to persons with a
particular type of handicap;
(3) Inquiry to determine whether an applicant for a dwelling is
qualified for a priority available to persons with handicaps or to
persons with a particular type of handicap;
(4) Inquiring whether an applicant for a dwelling is a current
illegal abuser or addict of a controlled substance;
(5) Inquiring whether an applicant has been convicted of the
illegal manufacture or distribution of a controlled substance.
(d) Nothing in this subpart requires that a dwelling be made
available to an individual whose tenancy would constitute a direct
threat to the health or safety of other individuals or whose tenancy
would result in substantial physical damage to the property of others.
[Codified to 24 C.F.R.
§ 100.202]
§ 100.203 Reasonable modifications of existing premises.
(a) It shall be unlawful for any person to refuse to permit, at the
expense of a handicapped person, reasonable modifications of existing
premises, occupied or to be occupied by a handicapped person, if the
proposed modifications may be necessary to afford the handicapped
person full enjoyment of the premises of a dwelling. In the case of a
rental, the landlord may, where it is reasonable to do so, condition
permission for a modification on the renter agreeing to restore the
interior of the premises to the condition that existed before the
modification, reasonable wear and tear excepted. The landlord may not
increase for handicapped persons any customarily required security
deposit. However, where it is necessary in order to ensure with
reasonable certainty that funds will be available to pay for the
restorations at the end of the tenancy, the landlord may negotiate as
part of such a restoration agreement a provision requiring that the
tenant pay into an interest bearing escrow account, over a reasonable
period, a reasonable amount of money not to exceed the cost of the
restorations. The interest in any such account shall accrue to the
benefit of the tenant.
(b) A landlord may condition permission for a modification on the
renter providing a reasonable description of the proposed modifications
as well as reasonable assurances that the work will be done in a
workmanlike manner and that any required building permits will be
obtained.
(c) The application of paragraph (a) of this section may be
illustrated by the following examples:
Example (1): A tenant with a handicap asks his
or her landlord for permission to install grab bars in the bathroom at
his or her own expense. It is necessary to reinforce the walls with
blocking between studs in order to affix the grab bars. It is unlawful
for the landlord to refuse to permit the tenant, at the tenant's own
expense, from making the modifications necessary to add the grab bars.
However, the landlord may condition permission for the modification on
the tenant agreeing to restore the bathroom to the condition that
existed before the modification, reasonable wear and tear excepted. It
would be reasonable for the landlord to require the tenant to remove
the grab bars at the end of the tenancy. The landlord may also
reasonably require that the wall to which the grab bars are to be
attached be repaired and restored to its original condition, reasonable
wear and tear excepted. However, it would be unreasonable for the
landlord to require the tenant to remove the blocking, since the
reinforced walls will not interfere in any way with the landlord's or
the next tenant's use and enjoyment of the premises and may be needed
by some future tenant.
{{10-31-08 p.7498.23}}
Example (2): An applicant for rental housing has a
child who uses a wheelchair. The bathroom door in the dwelling unit is
too narrow to permit the wheelchair to pass. The applicant asks the
landlord for permission to widen the doorway at the applicant's own
expense. It is unlawful for the landlord to refuse to permit the
applicant to make the modification. Further, the landlord may
not, in usual circumstances, condition permission for the
modification on the applicant paying for the doorway to be narrowed at
the end of the lease because a wider doorway will not interfere with
the landlord's or the next tenant's use and enjoyment of the premises.
[Codified to 24 C.F.R.
§ 100.203]
§ 100.204 Reasonable accommodations.
(a) It shall be unlawful for any person to refuse to make
reasonable accommodations in rules, policies, practices, or services,
when such accommodations may be necessary to afford a handicapped
person equal opportunity to use and enjoy a dwelling unit, including
public and common use areas.
(b) The application of this section may be illustrated by the
following examples:
Example (1): A blind applicant for rental
housing wants to live in a dwelling unit with a seeing eye dog. The
building has a no pets policy. It is a violation of
§ 100.204 for the owner or manager of the apartment complex to refuse
to permit the applicant to live in the apartment with a seeing eye dog
because, without the seeing eye dog, the blind person will not have an
equal opportunity to use and enjoy a dwelling.
Example (2): Progress Gardens is a 300 unit apartment
complex with 450 parking spaces which are available to tenants and
guests of Progress Gardens on a first come first served
basis. John applies for housing in Progress Gardens. John is
mobility impaired and is unable to walk more than a short distance and
therefore requests that a parking space near his unit be reserved for
him so he will not have to walk very far to get to his apartment. It is
a violation of § 100.204 for the owner or manager of Progress Gardens
to refuse to make this accommodation. Without a reserved space, John
might be unable to live in Progress Gardens at all or, when he has to
park in a space far from his unit, might have great difficulty getting
from his car to his apartment unit. The accommodation therefore is
necessary to afford John an equal opportunity to use and enjoy a
dwelling. The accommodation is reasonable because it is feasible and
practical under the circumstances.
[Codified to 24 C.F.R.
§ 100.204]
§ 100.205 Design and construction requirements.
(a) Covered multifamily dwellings for first occupancy after March
13, 1991 shall be designed and constructed to have at least one
building entrance on an accessible route unless it is impractical to do
so because of the terrain or unusual characteristics of the site. For
purposes of this section, a covered multifamily dwelling shall be
deemed to be designed and constructed for first occupancy on or before
March 13, 1991, if the dwelling is occupied by that date, or if the
last building permit or renewal thereof for the dwelling is issued by a
state, county or local government on or before June 15, 1990. The
burden of establishing impracticality because of terrain or unusual
site characteristics is on the person or persons who designed or
constructed the housing facility.
(b) The application of paragraph (a) of this section may be
illustrated by the following examples:
Example (1): A real estate developer plans to
construct six covered multifamily dwelling units on a site with a hilly
terrain. Because of the terrain, it will be necessary to climb a long
and steep stairway in order to enter the dwellings. Since there is no
practical way to provide an accessible route to any of the dwellings,
one need not be provided.
Example (2): A real estate developer plans to construct
a building consisting of 10 units of multifamily housing on a
waterfront site that floods frequently. Because of this unusual
characteristic of the site, the builder plans to construct the building
on stilts. It is customary for housing in the geographic area where the
site is located to be built on stilts. The housing may lawfully be
constructed on the proposed site on stilts even though this means that
there will be no practical way to provide an accessible route to the
building entrance.
{{10-31-08 p.7498.24}}
Example (3): A real estate developer plans to construct
a multifamily housing facility on a particular site. The developer
would like the facility to be built on the site to contain as many
units as possible. Because of the configuration and terrain of the
site, it is possible to construct a building with 105 units on the site
provided the site does not have an accessible route leading to the
building entrance. It is also possible to construct a building on the
site with an accessible route leading to the building entrance.
However, such a building would have no more than 100 dwelling units.
The building to be constructed on the site must have a building
entrance on an accessible route because it is not impractical to
provide such an entrance because of the terrain or unusual
characteristics of the site.
(c) All covered multifamily dwellings for first occupancy after
March 13, 1991 with a building entrance on an accessible route shall be
designed and constructed in such a manner that--
(1) The public and common use areas are readily accessible to and
usable by handicapped persons;
(2) All the doors designed to allow passage into and within all
premises are sufficiently wide to allow passage by handicapped persons
in wheelchairs; and
(3) All premises within covered multifamily dwelling units
contain the following features of adaptable design:
(i) An accessible route into and through the covered dwelling
unit;
(ii) Light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations;
(iii) Reinforcements in bathroom walls to allow later
installation of grab bars around the toilet, tub, shower, stall and
shower seat, where such facilities are provided; and
(iv) Usable kitchens and bathrooms such that an individual in a
wheelchair can maneuver about the space.
(d) The application of paragraph (c) of this section may be
illustrated by the following examples:
Example (1): A developer plans to construct a
100 unit condominium apartment building with one elevator. In
accordance with paragraph (a), the building has at least one accessible
route leading to an accessible entrance. All 100 units are covered
multifamily dwelling units and they all must be designed and
constructed so that they comply with the accessibility requirements of
paragraph (c) of this section.
Example (2): A developer plans to construct 30 garden
apartments in a three story building. The building will not have an
elevator. The building will have one accessible entrance which will be
on the first floor. Since the building does not have an elevator, only
the ground floor units are covered multifamily units. The
ground floor is the first floor because that is the floor
that has an accessible entrance. All of the dwelling units on the first
floor must meet the accessibility requirements of paragraph (c) of this
section and must have access to at least one of each type of public or
common use area available for residents in the building.
(e)(1) Compliance with the appropriate requirements of ICC/ANSI
A117.1--2003 (incorporated by reference at § 100.201a), ICC/ANSI
A117.1--1998 (incorporated by reference at § 100.201a), CABO/ANSI
A117.1--1992 (incorporated by reference at § 100.201a), or ANSI
A117.1--1986 (incorporated by reference at § 100.201a) suffices to
satisfy the requirements of paragraph (c)(3) of this section.
(2) The following also qualify as HUD-recognized safe harbors for
compliance with the Fair Housing Act design and construction
requirements:
(i) Fair Housing Accessibility Guidelines, March 6, 1991, in
conjunction with the Supplement to Notice of Fair Housing Accessibility
Guidelines: Questions and Answers About the Guidelines, June 28, 1994;
(ii) Fair Housing Act Design Manual, published by HUD in 1996,
updated in 1998;
(iii) 2000 ICC Code Requirements for Housing Accessibility
(CRHA), published by the International Code Council (ICC), October 2000
(with corrections contained in ICC-issued errata sheet), if adopted
without modification and without waiver of any of the provisions;
(iv) 2000 International Building Code (IBC), as amended by the
2001 Supplement to the International Building Code (2001 IBC
Supplement), if adopted without modification and without waiver of any
of the provisions intended to address the Fair Housing Act's design
and construction requirements;
(v) 2003 International Building Code (IBC), if adopted without
modification and without waiver of any of the provisions intended to
address the Fair Housing Act's design and construction requirements,
and conditioned upon the ICC publishing and distributing a statement to
jurisdictions and past and future purchasers of the 2003 IBC stating,
"ICC interprets Section 1104.1, and specifically, the Exception to
Section 1104.1, to be read
{{10-31-08 p.7498.24-A}}together with
Section 1107.4, and that the Code requires an accessible pedestrian
route from site arrival points to accessible building entrances, unless
site impracticality applies. Exceptions 1 to Section 1107.4 is not
applicable to site arrival points for any Type B dwelling units because
site impracticality is addressed under Section 1107.7."
(vi) 2006 International Building Code; published by ICC, January
2006, with the January 31, 2007, erratum to correct the text missing
form Section 1107.7.5, if adopted without modification and without
waiver of any of the provisions intended to address the Fair Housing
Act's design and construction requirements, and interpreted in
accordance with the relevant 2006 IBC Commentary;
(3) Compliance with any other safe harbor recognized by HUD in
the future and announced in the Federal Register will also
suffice to satisfy the requirements of paragraph (c)(3) of this
section.
(f) Compliance with a duly enacted law of a state or unit of
general local government that includes the requirements of paragraphs
(a) and (c) of this section satisfies the requirements of paragraphs
(a) and (c) of this section.
(g)(1) It is the policy of HUD to encourage states and units of
general local government to include, in their existing procedures for
the review and approval of newly constructed covered multifamily
dwellings, determinations as to whether the design and construction of
such dwellings are consistent with paragraphs (a) and (c) of this
section.
(2) A state or unit of general local government may review and
approve newly constructed multifamily dwellings for the purpose of
making determinations as to whether the requirements of paragraphs (a)
and (c) of this section are met.
(h) Determinations of compliance or noncompliance by a state or a
unit of general local government under paragraph (f) or (g) of this
section are not conclusive in enforcement proceedings under the Fair
Housing Amendments Act.
(i) This subpart does not invalidate or limit any law of a state or
political subdivision of a state that requires dwellings to be designed
and constructed in a manner that affords handicapped persons greater
access than is required by this subpart.
[Codified to 24 C.F.R. § 100.205]
[Section 100.205 amended at 56 Fed. Reg. 11665, March 20,
1991, effective April 19, 1991; 73 Fed. Reg. 63616, October 24, 2008,
effective November 24, 2008]
Subpart E—Housing for Older
Persons
§ 100.300 Purpose.
The purpose of this subpart is to effectuate the exemption
in the Fair Housing Amendments Act of 1988 that relates to housing for
older persons.
[Codified to 24 C.F.R.
§ 100.300]
§ 100.301 Exemption.
(a) The provisions regarding familial status in this part
do not apply to housing which satisfies the requirements of
§§ 100.302, 100.303 or § 100.304.
(b) Nothing in this part limits the applicability of any
reasonable local, state, or federal restrictions regarding the maximum
number of occupants permitted to occupy a dwelling.
[Codified to 24 C.F.R.
§ 100.301]
§ 100.302 State and federal elderly housing programs.
The provisions regarding familial status in this part shall
not apply to housing provided under any federal or state program that
the Secretary determines is specifically designed and operated to
assist elderly persons, as defined in the state or federal program.
[Codified to 24 C.F.R.
§ 100.302]
§ 100.303 62 or over housing.
(a) The provisions regarding familial status in this part
shall not apply to housing intended for, and solely occupied by,
persons 62 years of age or older. Housing satisfies the requirements of
this section even though:
(1) There are persons residing in such housing on September 13,
1988 who are under 62 years of age, provided that all new occupants are
persons 62 years of age or older;
(2) There are unoccupied units, provided that such units are
reserved for occupancy by persons 62 years of age or over;
{{6-30-00 p.7498.25}}
(3) There are units occupied by employees of the housing (and
family members residing in the same unit) who are under 62 years of age
provided they perform substantial duties directly related to the
management or maintenance of the housing.
(b) The following examples illustrate the application of paragraph
(a) of this section:
Example (1): John and Mary apply for housing at
the Vista Heights apartment complex which is an elderly housing complex
operated for persons 62 years of age or older. John is 62 years of age.
Mary is 59 years of age. If Vista Heights wishes to retain its "62
or over" exemption it must refuse to rent to John and Mary because
Mary is under 62 years of age. However, if Vista Heights does rent to
John and Mary, it might qualify for the "55 or over" exemption in
§ 100.304.
Example (2): The Blueberry Hill retirement community
has 100 dwelling units. On September 13, 1988, 15 units were vacant and
35 units were occupied with at least one person who is under 62 years
of age. The remaining 50 units were occupied by persons who were all 62
years of age or older. Blueberry Hill can qualify for the "62 or
over" exemption as long as all units that were occupied after
September 13, 1988 are occupied by persons who were 62 years of age or
older. The people under 62 in the 35 units previously described need
not be required to leave for Blueberry Hill to qualify for the "62
or over" exemption.
[Codified to 24 C.F.R.
§ 100.303]
§ 100.304 Housing for persons who are 55 years of age or older.
(a) The provisions regarding familial status in this part shall not
apply to housing intended and operated for persons 55 years of age or
older. Housing qualifies for this exemption if:
(1) The alleged violation occurred before December 28, 1995 and
the housing community or facility complied with the HUD regulations in
effect at the time of the alleged violation; or
(2) The alleged violation occurred on or after December 28, 1995
and the housing community or facility complies with:
(i) Section 807(b)(2)(C) (42 U.S.C. 3607(b)) of the Fair Housing
Act as amended; and
(ii) 24 CFR 100.305, 100.306, and 100.307.
(b) For purposes of this subpart, housing facility or
community means any dwelling or group of dwelling units governed
by a common set of rules, regulations or restrictions. A portion or
portions of a single building shall not constitute a housing facility
or community. Examples of a housing facility or community include, but
are not limited to:
(1) A condominium association;
(2) A cooperative;
(3) A property governed by a homeowners' or resident
association;
(4) A municipally zoned area;
(5) A leased property under common private ownership;
(6) A mobile home park; and
(7) A manufactured housing community.
(c) For purposes of this subpart, older person means a
person 55 years of age or older.
[Codified to 24 C.F.R. § 100.304]
[Section 100.304 amended at 60 Fed. Reg. August 18, 1995,
effective September 18, 1995; 61 Fed. Reg. 14379, April 1, 1996,
effective May 1, 1996; 61 Fed. Reg. 18249, April 25, 1996, effective
May 1, 1996; 64 Fed. Reg. 16329, April 2, 1999, effective May 3,
1999]
§ 100.305 80 percent occupancy.
(a) In order for a housing facility or community to qualify as
housing for older persons under § 100.304, at least 80 percent of its
occupied units must be occupied by at least one person 55 years of age
or older.
(b) For purposes of this subpart, occupied unit means:
(1) A dwelling unit that is actually occupied by one or more
persons on the date that the exemption is claimed; or
{{6-30-00 p.7498.26}}
(2) A temporarily vacant unit, if the primary occupant has
resided in the unit during the past year and intends to return on a
periodic basis.
(c) For purposes of this subpart, occupied by at least one
person 55 years of age or older means that on the date the
exemption for housing designed for persons who are 55 years of age or
older is claimed:
(1) At least one occupant of the dwelling unit is 55 years of age
or older; or
(2) If the dwelling unit is temporarily vacant, at least one of
the occupants immediately prior to the date on which the unit was
temporarily vacated was 55 years of age or older.
(d) Newly constructed housing for first occupancy after March 12,
1989 need not comply with the requirements of this section until at
least 25 percent of the units are occupied. For purposes of this
section, newly constructed housing includes a facility or community
that has been wholly unoccupied for at least 90 days prior to
re-occupancy due to renovation or rehabilitation.
(e) Housing satisfies the requirements of this section even though:
(1) On September 13, 1988, under 80 percent of the occupied units
in the housing facility or community were occupied by at least one
person 55 years of age or older, provided that at least 80 percent of
the units occupied by new occupants after September 13, 1988 are
occupied by at least one person 55 years of age or older.
(2) There are unoccupied units, provided that at least 80 percent
of the occupied units are occupied by at least one person 55 years of
age or older.
(3) There are units occupied by employees of the housing facility
or community (and family members residing in the same unit) who are
under 55 years of age, provided the employees perform substantial
duties related to the management or maintenance of the facility or
community.
(4) There are units occupied by persons who are necessary to
provide a reasonable accommodation to disabled residents as required by
§ 100.204 and who are under the age of 55.
(5) For a period expiring one year from the effective date of
this final regulation, there are insufficient units occupied by at
least one person 55 years of age or older, but the housing facility or
community, at the time the exemption is asserted:
(i) Has reserved all unoccupied units for occupancy by at least
one person 55 years of age or older until at least 80 percent of the
units are occupied by at least one person who is 55 years of age or
older; and
(ii) Meets the requirements of §§ 100.304, 100.306, and
100.307.
(f) For purposes of the transition provision described in
§ 100.305(e)(5), a housing facility or community may not evict,
refuse to renew leases, or otherwise penalize families with children
who reside in the facility or community in order to achieve occupancy
of at least 80 percent of the occupied units by at least one person 55
years of age or older.
(g) Where application of the 80 percent rule results in a fraction
of a unit, that unit shall be considered to be included in the units
that must be occupied by at least one person 55 years of age or older.
(h) Each housing facility or community may determine the age
restriction, if any, for units that are not occupied by at least one
person 55 years of age or older, so long as the housing facility or
community complies with the provisions of § 100.306.
[Codified to 24 CFR § 100.305]
[Section 100.305 added at 64 Fed. Reg. 16329, April 2,
1999, effective May 3, 1999]
§ 100.306 Intent to operate as housing assigned for persons who
are 55 years of age or older.
(a) In order for a housing facility or community to qualify as
housing designed for persons who are 55 years of age or older, it must
publish and adhere to policies and procedures that demonstrate its
intent to operate as housing for persons 55 years of age
or
{{6-30-00 p.7498.27}}older. The following
factors, among others, are considered relevant in determining whether
the housing facility or community has complied with this requirement:
(1) The manner in which the housing facility or community is
described to prospective residents;
(2) Any advertising designed to attract prospective residents;
(3) Lease provisions;
(4) Written rules, regulations, covenants, deed or other
restrictions;
(5) The maintenance and consistent application of relevant
procedures;
(6) Actual practices of the housing facility or community; and
(7) Public posting in common areas of statements describing the
facility or community as housing for persons 55 years of age or older.
(b) Phrases such as "adult living", "adult community",
or similar statements in any written advertisement or prospectus are
not consistent with the intent that the housing facility or community
intends to operate as housing for persons 55 years of age or older.
(c) If there is language in deed or other community or facility
documents which is inconsistent with the intent to provide housing for
persons who are 55 years of age or older housing, HUD shall consider
documented evidence of a good faith attempt to remove such language in
determining whether the housing facility or community complies with the
requirements of this section in conjunction with other evidence of
intent.
(d) A housing facility or community may allow occupancy by families
with children as long as it meets the requirements of §§ 100.305 and
100.306(a).
(Approved by the Office of Management and Budget under control number
2529--0046)
[Codified to 24 CFR § 100.306]
[Section 100.306 added at 64 Fed. Reg. 16330, April 2,
1999, effective May 3, 1999]
§ 100.307 Verification of occupancy.
(a) In order for a housing facility or community to qualify as
housing for persons 55 years of age or older, it must be able to
produce, in response to a complaint filed under this title,
verification of compliance with § 100.305 through reliable surveys
and affidavits.
(b) A facility or community shall, within 180 days of the effective
date of this rule, develop procedures for 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. Such
procedures may be part of a normal leasing or purchasing arrangement.
(c) The procedures described in paragraph (b) of this section 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 at least once every two
years. A survey may include information regarding whether any units are
occupied by persons described in paragraphs (e)(1), (e)(3), and (e)(4)
of § 100.305.
(d) Any of the following documents are considered reliable
documentation of the age of the occupants of the housing facility or
community:
(1) Driver's license;
(2) Birth certificate;
(3) Passport;
(4) Immigration card;
(5) Military identification;
(6) Any other state, local, national, or international official
documents containing a birth date of comparable reliability; or
(7) A certification in a lease, application, affidavit, or other
document signed by any member of the household age 18 or older
asserting that at least one person in the unit is 55 years of age or
older.
(e) A facility or community shall consider any one of the forms of
verification identified above as adequate for verification of age,
provided that it contains specific information about current age or
date of birth.
{{6-30-00 p.7498.28}}
(f) 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.
(g) If the occupants of a particular dwelling unit refuse to comply
with the age verification procedures, the housing facility or community
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.
(h) Surveys and verification procedures which comply with the
requirements of this section shall be admissible in administrative and
judicial proceedings for the purpose of verifying occupancy.
(i) A summary of occupancy surveys shall be available for
inspection upon reasonable notice and request by any person.
[Codified to 24 CFR § 100.307]
[Section 100.307 added at 64 Fed. Reg. 16330, April 2,
1999, effective May 3, 1999]
§ 100.308 Good faith defense against civil money damages.
(a) A person shall not be held personally liable for monetary
damages for discriminating on the basis of familial status, if the
person acted with the good faith belief that the housing facility or
community qualified for a housing for older persons exemption under
this subpart.
(b)(1) A person claiming the good faith belief defense must have
actual knowledge that the housing facility or community has, through an
authorized representative, asserted in writing that it qualifies for a
housing for older persons exemption.
(2) Before the date on which the discrimination is claimed to
have occurred, a community or facility, through its authorized
representatives, must certify, in writing and under oath or
affirmation, to the person subsequently claiming the defense that it
complies with the requirements for such an exemption as housing for
persons 55 years of age or older in order for such person to claim the
defense.
(3) For purposes of this section, an authorized representative of
a housing facility or community means the individual, committee,
management company, owner, or other entity having the responsibility
for adherence to the requirements established by this subpart.
(4) For purposes of this section, a person means a natural
person.
(5) A person shall not be entitled to the good faith defense if
the person has actual knowledge that the housing facility or community
does not, or will not, qualify as housing for persons 55 years of age
or older. Such a person will be ineligible for the good faith defense
regardless of whether the person received the written assurance
described in paragraph (b) of this section.
[Codified to 24 CFR § 100.308]
[Section 100.308 added at 64 Fed. Reg. 16330, effective
May 3, 1999]
Note: This Appendix will not be Codified in Title 24 of
the CFR.
Appendix
Examples of Applications of HUD's Regulations Governing the
Exemption for Housing for Persons 55 Years of Age or Older to the Fair
Housing Act
Sections
1. Purpose.
2. 80 percent occupancy.
{{6-30-00 p.7498.29}}
3. Intent to operate as housing for persons who are 55 years of age
or older.
4. Verification of occupancy.
5. Future revisions to this appendix.
1. Purpose.
The Fair Housing Act (Title VIII of the Civil Rights Act of 1968, as
amended, 42 U.S.C. 3601--3619) (the Act) exempts "housing for older
persons" from the prohibitions against discrimination because of
familial status. Section
807(b)(2)(C) of the Act exempts housing intended and operated
for occupancy by persons 55 years of age or older that satisfies
certain criteria. HUD has implemented the "housing for older
persons" exemption at 24 CFR part 100, subpart E. Specifically,
§§ 100.304, 100.305,
100.306, and 100.307 set forth the requirements for housing seeking to
qualify for the exemption. The purpose of this appendix is to provide
guidance to housing facilities or communities in applying these HUD
requirements.
2. 80 Percent Occupancy.
Section 100.305 provides that in order for a housing facility or
community to qualify for the exemption, at least 80 percent of its
occupied units must be occupied by at least one person 55 years of age
or older. This occupancy requirement must be met at the time of any
alleged violation of the Act. Paragraph (f) of § 100.305 states that
where application of the 80 percent rule results in a fraction of a
unit, that unit shall be considered to be included in the units that
must be occupied by at least one person 55 years of age or older.
Example: A community or facility contains 63 occupied
units. Eighty percent of 63 units equals 50.4. Under § 100.305(d), 51
units would require occupancy by at least one person 55 years of age or
older to qualify as 55 and older housing.
Section 100.305 also sets forth the other requirements a housing
facility or community must follow in calculating occupancy. The
following examples illustrate these requirements:
Example 1:
Buena Vista is a condominium association of 120 units. On September
13, 1988, twenty (20) of the occupied units are not occupied by at
least one person 55 years of age or older.
On April 1, 1998, Buena Vista declares itself to be housing for
persons 55 years of age or older. On that date:
(1) The twenty (20) persons described above are still residing at
Buena Vista;
(2) Ten (10) units of the total 120 units are unoccupied;
(3) One (1) of the units is occupied by the association's
maintenance supervisor; and
(4) Two (2) units are occupied only by live-in health aides who
provide reasonable accommodations to residents with disabilities and
who are under the age of 55.
How many of the occupied units must be occupied by at least one
person 55 years of age or older in order for Buena Vista to qualify as
55-or-older housing?
Under § 100.305(e), Buena Vista would calculate its compliance
with the 80 percent occupancy requirement by subtracting the following
units from the total 120 units:
(1) The 20 units not occupied by at least one person 55 years of
age or older on September 13, 1988 (See § 100.305(e)(1));
(2) The ten (10) unoccupied units (See
§ 100.305(e)(2));
(3) The one (1) unit occupied by the maintenance person (See
§ 100.305(e)(3)); and
(4) The two (2) units occupied by the health aides (See
42 U.S.C. 3607(b)(3)(A) and 42
§ 100.305(e)(4)).
Subtracting these 33 units from the total of 120 units leaves 87
units. At least 80 percent of these 87 units must be occupied by at
least one person 55 years of age or older. Eighty percent of 87 equals
69.6. Due to § 100.305(d), 70 units must be occupied by at least one
person 55 years of age or older. This example assumes that the
community also meets the requirements of §§ 100.306 and 100.307.
Example 2:
Topaz House is a cooperative of 100 units. On January 20, 1998,
Topaz House announces its intent to be 55-or-older housing and
publishes policies and procedures sufficient to satisfy § 100.306. On
that date, of the 100 total units:
{{6-30-00 p.7498.30}}
(1) Sixty (60) of the occupied units are occupied by at least one
person 55 years of age or older;
(2) Thirty (30) of the occupied units do not have occupants 55
years of age or older; and
(3) Ten (10) units are unoccupied.
Since 60 out of the 90 occupied units are occupied by at least one
person 55 years of age or older, the Topaz House only has 67 percent of
its occupied units occupied by at least one person 55 years of age or
older.
Under § 100.305(e)(5), Topaz House may still qualify for the
55-or-older exemption if, during a period which is one year from the
effective date of this regulation, it:
(1) Reserves all unoccupied units for occupancy by at least one
person 55 years of age or older until at least 80 percent of the units
are occupied by at least one person who is 55 years of age or older;
and
(2) Meets the requirements of §§ 100.304, 100.305, 100.306,
and 100.307 and
(3) Within the one year period achieves occupancy of at least
80% of its occupied units by at least one person who is 55 years of
age or older.
There is no requirement that Topaz House take any action concerning
the residents under 55 years of age who are occupying units on the date
the building declares its intent to be 55-or-older housing. Topaz may
not evict, or terminate the leases of households containing children
under the age of 18, in order to qualify for the exemption.
Example 3:
Snowbird City is a mobile home community in Texas with 100 units.
Snowbird City complies with all other requirements of 55-or-older
housing, but is uncertain of its compliance with the 80 percent
occupancy rule.
Fifty out of the 100 units are occupied year round. Of these fifty
units, 12 units are not occupied by at least one person 55 years of age
or older. Of the remaining 50 units, 5 are unoccupied and offered for
sale, and the remaining 45 are occupied by at least one person 55 years
of age or older each winter on a routine and reoccurring basis.
If a complaint of familial status discrimination is filed in
December, the community meets the 80 percent occupancy requirement
because 83 out of the 95 occupied units (87 percent), are occupied by
at least one person 55 years of age or older. If the complaint is filed
in July, Snowbird City still meets the requirement. Under
§ 100.305(b), a temporarily vacant unit is considered occupied by a
person 55 years of age or older if:
(1) The primary occupant has resided in the unit during the past
year; and
(2) The occupant intends to return on a periodic basis.
Example 4:
The King Phillip Senior Community is a newly renovated building
originally built in 1952. It has been vacant for over one year while
extensive renovations were completed. The building contains 200 units.
The King Phillip Senior Community is intended to be operated as a
55-or-older community.
Under § 100.305(d), newly constructed housing need not comply with
the 80 percent occupancy requirement until 25 percent of the total
units are occupied. For purposes of § 100.305(d), newly constructed
housing includes housing that has been unoccupied for at least 90 days
due to renovation or rehabilitation. Accordingly, the King Phillip
Senior Community need not comply with the 80 percent occupancy
requirement until 50 out of its 200 units (25 percent) are occupied.
Subsequent to occupancy of the 50th unit, however, the building will
have to satisfy the 80 percent occupancy rule in order to qualify as
55-or-older housing.
3. Intent to operate as housing for persons who are 55 years
of age or older.
Section 100.306 provides that in order for a housing facility or
community to qualify as housing for persons 55 years of age or older,
it must publish and adhere to policies and procedures that demonstrate
its intent to operate as housing for persons 55 years of age or older.
Section 100.306 also details the factors HUD will utilize to determine
whether a
{{6-30-00 p.7498.31}}housing
facility or community has met this intent requirement. The following
are examples of housing facilities and communities which satisfy the
intent requirement described in § 100.306:
Example 1:
A mobile home park which takes the following actions satisfies the
intent requirement:
(1) Posts a sign indicating that the park is 55-or-older housing;
(2) Includes lease provisions stating that the park intends to
operate as 55-or-older housing; and
(3) Has provided local realtors with copies of the lease
provisions.
Example 2:
An area zoned by a unit of local government as "senior
housing" satisfies the intent requirement if:
(1) Zoning maps containing the "senior housing" designation
are available to the public;
(2) Literature distributed by the area describes it as "senior
housing";
(3) The "senior housing" designation is recorded in
accordance with local property recording statutes; and
(4) Zoning requirements include the 55-or-older requirement or a
similar provision.
Example 3:
A condominium association satisfies the intent requirement if it
has:
(1) Adopted, through its rules and regulations, restrictions on
the occupancy of units consistent with HUD's regulations governing
55-or-older housing at 24 CFR part 100, subpart E;
(2) Has distributed copies of the rules to all occupants; and
(3) Has notified local realtors of the restrictions.
The following is an example of a housing facility which has failed
to satisfy the intent requirement described in § 100.306:
Example 4:
A homeowners association has failed to meet the intent requirement
if it has Covenants, Conditions and Restrictions which refer to an
"adult community," has posted a sign stating "A 40 and over
community" and has restricted visiting children to a maximum of two
weeks, but contain no similar restriction for visiting adults.
4. Verification of occupancy.
Section 100.307 provides that in order for a housing facility or
community to qualify as 55-or-older housing, it must be able to
produce, in response to a complaint alleging a violation of the Act,
verification of compliance with § 100.305 through reliable surveys
and affidavits. Paragraph (d)(7) of § 100.307 includes
self-certifications in a list of documents considered reliable
documentation of the age of occupants. The self-certification may be
included in a lease or other document, and must be signed by an adult
member of the household asserting that at least one person in the unit
is 55 years of age or older. The following examples provide acceptable
provisions to demonstrate a self-certification process:
Example 1:
All new leases, new purchase agreements, or new applications contain
a provision directly above the signatory line for lessees, asserting
that at least one occupant of the dwelling 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.
Example 2: Sample certification.
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.
{{6-30-00 p.7498.32}}
Paragraph (e) of § 100.307 requires that the housing facility or
community establish appropriate policies to require that all occupants
comply with the age verification procedures. The following examples
illustrate acceptable policies:
Example 1:
A condominium association establishes a rule that the board of
directors must approve all new occupants. One criteria for approval is
that new occupants of each unit inform the condominium association
whether at least one person occupying the unit is 55 years of age or
older.
Example 2:
A homeowners association amends its Covenants, Conditions and
Restrictions, and records them at the appropriate government recording
office. The amendments require applicants to state whether at least one
occupant is 55 years of age or older.
Example 3:
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.
5. Future revisions to this appendix.
HUD may update or revise this appendix as necessary.
{{8-31-95 p.7498.33}}
Category #1 (Social Needs)
Social and Recreational Services provided on a
regular, organized basis
 softball, golf, shuffleboard tournaments, lawn bowling,
billiards or similar team activities
bridge club, organized card games, chess, or checkers
exercise classes--low-impact, stretching, t'ai-chi,
swim-therapy
bingo
fellowship meetings
musical theater group
dances, square dancing, polka, ballroom dancing
at least weekly potluck dinners, breakfasts, luncheons,
coffees
coordinated holiday parties for residents
Lions club, clubs or classes for sewing, needlepoint, art,
gardening, music, books, golf, bowling, photography, travel, etc.
cooking classes
crafts classes: ceramics, macrame, woodworking, jewelry,
quilting, painting
field trips--bowling, sightseeing, concerts, plays, hiking,
shopping outlets
fashion shows
on-site movies or other theatrical events
liaison/coordination with activities at community-wide
senior centers and activities
emergency meal service for residents who are ill or in need
organized travel opportunities
Category #2 (Educational Needs)
Continuing education activities
at least monthly presentations on subjects such as health
care, nutrition, stress management, medicare, insurance, social
security, tax preparation, vacation planning, gardening, crime
prevention
consumer protection education
regularly offered CPR classes
regularly offered language study classes
regularly offered videotapes on health care
courses available at local educational
institutions
library with magazines for older persons and material
available in large print
Category #3 (Educational Needs)
Information and counseling services
providing new residents with package of information about
local services of interest to seniors
bulletin board for exchange of information or services
printed resident directory provided to each resident
free information on cable TV programs for residents
internal or external support groups for residents
seminars on the aging process
on-site legal services
informational sessions on fire safety, mental health issues,
political and environmental issues
seminars on estate planning, dealing with death or other
issues affecting older persons
seminars on governmental benefits programs
Category #4 (Physical Needs)
Homemaker services
employees assist with housework or yardwork
organized committee of residents to perform light household
tasks or yard work for those who cannot do them themselves
referrals to housecleaning services
bill-paying services
pet care/pet therapy services
minor home repair service
tool loan service
Category #5 (Safety Needs)
Outside maintenance/health and safety services
on-staff medical personnel with first aid/CPR training
on-staff repair, maintenance and painting services
meals on wheels
lawn care and grass cutting, shrubbery and tree trimming
snow shoveling and plowing
system for referrals to doctors or other health care
professionals
{{8-31-95 p.7498.34}}
regular system to contact residents who are house-bound to
make sure they are o.k.
referrals for transportation
systems for referrals to income tax preparer
systems for referrals to repair and maintenance services
security guards/patrols, organizing neighborhood or block
watch
organizing committee of residents to do household repairs
and yard work for those who cannot do them themselves
exterior lighting-alarm systems monitoring
vacation house watch
limited access to property by controlled access gate or
similar system
Category #6 (Health Needs)
Emergency and preventative health care programs
meetings about nutrition, back care, breast
cancer/self-examination/mammogram, prostate cancer screening, vision
care, or other health care topics (see continuing education)
monthly blood pressure checks
annual flu vaccine shots available
periodic vision or hearing tests
staff or volunteers pick up food from social services for
mobility impaired seniors
organizing committee or buddy system of residents to do
errors for people who become ill and/or to stay with sick persons while
their spouses do errands
emergency telephone network, staff or volunteers monitor
people who have serious medical problems
doctor/medical facilities located within two miles of
facility
health care equipment pool for resident use
This housing facility has determined to provide and does in fact
provide at least 10 of the following services and facilities by
offering at least 2 facilities or services in at least 5 of the
following categories, including specifically at least two facilities
from category 10 or from category 11. This housing facility also limits
occupancy consistent with the Fair Housing Act which requires that at
least 80% of units be occupied by at least one person who is 55 years
of age or older. As housing for older persons, we claim an exemption
from the provisions of the Fair Housing Act regarding discrimination
based on familial status--that is, the presence of persons under the
age of 18.
Category #7 (Social/Health Needs)
Congregate dining
available congregate dining for at least one meal each day
sit-down meal service
special menus for dietary needs
activities conducted in conjunction with congregate dining
Category #8 (Transportation)
Transportation to facilitate access to social
services
transportation provided to doctors' offices, shopping,
religious services, outside social or recreational activities
public bus stop or train station within walking distance and
bus schedules and maps available
organized system to provide transportation for
residents who cannot drive
sign-up board for shared transportation needs
shared ride services to social events, functions, medical
care, shopping
Category #9 (Social Needs)
Services to encourage and assist residents to
use available facilities and services
volunteer or staff activity planner
swimming or water aerobics instructors
dance or exercise instructors
crafts instructors
newsletters, newspapers or flyers informing residents of
activities, trips, clubs, etc.
monthly calendar of events
resident council or committees to encourage participation in
activities
Category #10 (Leisure Needs)
Social and Recreational
Facilities
{{8-31-95 p.7498.35}}
clubhouse, communal kitchen, or communal dining area
library with large print books or subscriptions to
publications targeted to older persons
sauna, jacuzzi or whirlpool
recreation or game room, arts and crafts room, community
room or meeting room
television room for communal use with VCR
exercise equipment
ping pong, pool or billiard tables, shuffleboard courts,
horseshoe pits or bocce ball (with functional equipment)
golf course
stage, piano and dance floor
woodworking shop
restaurant for resident use
bank
legal assistance
travel agency
convenience store
barber shop
dry cleaners
hair salon
lapidary
kiln
fishing pond
Category #11 (Health/Safety Needs)
Accessible physical environment
accessible clubhouse
at least one accessible bathroom facility in public and
common use areas
ramps (curbs or drainage ditches are cut or ramped to allow
wheelchair/walker access)
ramped sidewalks in public and common use areas; stairs at a
minimum
benches in public and common use areas
assigned and designated parking spaces, including
handicapped parking
accessible swimming pool (i.e., ramped entrance to pool
area)
accessible management office
accessible dining area or activity area
vans, buses available with wheelchair lifts or easy access
for persons with mobility difficulties
Lift to assist in swimming pool use
amplifiers provided on at least 25% of public phones
Category #12 (Social, Leisure, Health, Safety or Educational
Needs)
Other
Any facility or service which is not listed above but which
is designed to meet the health, safety, social or leisure needs of
persons who are 55 and older and which is actually available to and
used by residents of the property. (Describe)
SIGNED UNDER PENALTY OF PERJURY OF THE LAWS OF THE UNITED STATES OF
AMERICA:
____________________________________________
signature
____________________________________________
printed name
____________________________________________
title
____________________________________________
authorized representative of the above named housing provider
[Uncodified]
[Appendix added at 60 Fed. Reg. 43332, August 18, 1995, effective
September 18, 1995]
Subpart F—Interference, Coercion or
Intimidation
§ 100.400 Prohibited interference, coercion, or intimidation.
(a) This subpart provides the Department's interpretation of the
conduct that is unlawful under section 818 of the Fair Housing Act.
(b) It shall be unlawful to coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment of, or on
account of that person having exercised or enjoyed, or on account of
that person having aided or encouraged any other person in the exercise
or enjoyment of, any right granted or protected by this
part.
{{8-31-95 p.7498.36}}
(c) Conduct made unlawful under this section includes, but is not
limited to, the following:
(1) Coercing a person, either orally, in writing, or by other
means, to deny or limit the benefits provided that person in connection
with the sale or rental of a dwelling or in connection with a
residential real estate-related transaction because of race, color,
religion, sex, handicap, familial status, or national origin.
(2) Threatening, intimidating or interfering with persons in
their enjoyment of a dwelling because of the race, color, religion,
sex, handicap, familial status, or national origin of such persons, or
of visitors or associates of such persons.
(3) Threatening an employee or agent with dismissal or an adverse
employment action, or taking such adverse employment action, for any
effort to assist a person seeking access to the sale or rental of a
dwelling or seeking access to any residential real estate-related
transaction, because of the race, color, religion, sex, handicap,
familial status, or national origin of that person or of any person
associated with that person.
(4) Intimidating or threatening any person because that person is
engaging in activities designed to make other persons aware of, or
encouraging such other persons to exercise, rights granted or protected
by this part.
(5) Retaliating against any person because that person has made a
complaint, testified, assisted, or participated in any manner in a
proceeding under the Fair Housing Act.
[Codified to 24 C.F.R. § 100.400]
[End Consumer Protection]
[The tab card "FRB Regulations" follows this.]
*24 CFR Parts 100--125. Go Back to Text
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