The Fair Housing Act

Housing for Older and Impaired Persons

The types and quality of housing for seniors vary throughout the United States. Nonetheless, two federal laws - the Fair Housing Act and the Americans with Disabilities Act - identify a set of basic housing requirements that local governments, architects, developers, property owners, rental managers, and other professionals must follow when accommodating older adults, particularly the impaired (Hyatt, 2001; U.S. Department of Housing and Urban Development, 2003b).

The Fair Housing Act

Since 1968, The Fair Housing Act (Title VIII of the Civil Rights Act of 1968) has protected consumers of any race, color, sex, religion, or national origin seeking to buy and rent housing of their choice. The Fair Housing Amendments of 1988 (FHA) further added "handicap" and "familial status" to the grounds for prohibiting discrimination.

Adults Only

Congress passed the Fair Housing Act to stop housing providers from discriminating against families with children when renting or selling their homes, but the law also recognized housing for seniors as an exempt category. By so doing, it gave seniors the option of living primarily with persons the same age as themselves, and gave housing developers the motivation to target seniors as an exclusive consumer market. This category included:

  • housing occupied by one or more persons created by any state or federal program (for example, Section 202 government-assisted rental program);
  • housing intended for, and solely occupied by, persons 62 years of age or older;
  • housing in which 80 percent or more of the occupied units in the housing facility (or community) were occupied by at least one person age 55 and older, so long as the senior housing property published and verified policies and procedures that demonstrated an intent to be for seniors (The Housing for Older Persons Act of 1995 [HOPA] eliminated what was an earlier and confusing requirement that age 55 and older housing had to have "significant facilities and services" for seniors.)

Protecting the Disabled from Housing Discrimination

Physically impaired older renters sometimes find themselves in an apartment or rental building with unhelpful or unsafe design features that need modification. Some examples of such features include lack of grab bars, difficult walking environments, hard-to-reach shelves and closets, shower and sink features that are difficult to use, poor or absent wheelchair access, hard-to-use common areas (Wylde, Baron-Robbins, & Clark, 1994). The property owner, though, may prohibit any changes. And older renters may also have difficulty complying with the tenant rules in the building. Again, maybe the property owner will not yield. Worse still, seniors may have to confront rental managers who see to evict them because they convey the "wrong" marketing image and pose greater insurance liability risks.

The Fair Housing Act protects disabled persons against various such types of discrimination (Disabled persons broadly includes those who have any physical or mental impairment that substantially limits one or more of their major life activities.) Its provisions applied to all residential buildings with four or more dwelling units, including many types of planned senior housing. The list below details its major provisions:

  • A property owner must allow disabled persons to make "reasonable modifications" to residences so that they can fully enjoy them. The tenants, however, must pay for these changes. Examples include installing grab bars, replacing doorknobs with lever handles, widening doorways for wheelchair access, or installing a ramp at the entrance to the building. When the tenant vacates the dwelling, he or she may also have to restore the premises to its original condition.
  • A property owner cannot refuse to make "reasonable accommodations" in the building's rules, policies, practices, or services to ensure disabled persons can use and enjoy their residences like the other residents. For example, a property owner would be expected to waive a rule against keeping pets for a tenant who is emotionally dependent on the pet or uses the pet as a service animal; to waive a rule against keeping pets for a tenant who is emotionally dependent on the pet or uses the pet as  a service animal; to waive a no-guest rule for a tenant who needs a live-in aide; or to change parking rules to make it more convenient for a tenant with disabilities to park.
  • Rental managers/owners/landlords are prohibited from making inquiries about the disability status of an applicant unless they are related to the applicant's "ability to meet the requirements of ownership or tenancy" and are asked of all applicants.
  • Multifamily dwellings occupied after Marc 13, 1991, with four or more units with an elevator are required to contain certain handicap-accessible features to make them usable for persons with disabilities. The accessibility guidelines include seven broad technical requirements (U.S. Department of Housing and Urban Development, 1998):
    • accessible building entrance on an accessible route
    • accessible and usable public and common use areas
    • usable doors
    • accessible route into and through the covered dwelling unit
    • light switches, electrical outlets, thermostats, and other environmental controls in accessible locations
    • reinforced walls for grab bars
    • usable kitchens and bathrooms

  • Local zoning and land-use restrictions often limit the location of facilities serving frail or disabled seniors. The Fair Housing Act prohibited the arbitrary application of special requirements through land-use regulations, restrictive covenants, and conditional or special-use permits that had the effect of limiting the ability of handicapped individuals to live in the residence of their choice in the community.

Americans with Disabilities Act of 1990

The Fair Housing Act's design requirements and disability discrimination provisions applied to most conventional residential housing and planned senior housing properties. The Americans with Disabilities Act (ADA) protects against similar sources of discrimination in the nonresidential areas or public accommodations of privately owned senior housing complexes. These might include a restaurant, bar, auditorium, sales or rental office, laundromat, barber or beauty shop, professional offices of a health care provider, library, or exercise and recreation sites. ADA regulatory guidelines specifically cover long-term care facilities and nursing homes.

The information above is reprinted from Working with Seniors: Health, Financial and Social Issues with permission from Society of Certified Senior Advisors® . Copyright © 2009. All rights reserved.