By Laurie F. Masotto, Esq. (originally published in Fall 2003)

In order to continue to qualify as a community to be occupied by persons 55 years of age and older, the community must be able to produce verification of compliance by “reliable surveys and affidavits” that the persons occupying the property meet the age qualification.

Pursuant to the Code of Federal Regulations Section 100.307, a 55 year or older community is required to develop procedures for routinely determining the occupancy of each unit, including identifying whether at least one occupant meets the age requirements. “Regular” means at least once every two years.

Such procedures may be part of a normal leasing or purchase (i.e. during escrow) procedure. The Association may request a signed statement, under penalty of perjury, with appropriate documentation showing the occupants’ age.

The following documents are considered reliable documents to prove one’s age: drivers license, birth certificate, passport, immigration card, military identification, other state, local, national or other international official documents containing the birth date of comparable reliability or certification in a lease, application, affidavit or other document signed by another with personal knowledge, asserting that at least one person in the unit is at least 55 years of age or older.

The Rules require the community to establish and maintain a perfect policy to require that occupants comply with such age verification procedures. You may achieve this by adopting rules providing that verification will take place at least once every two years, and listing the type of documents that will be required to be produced at that time.

Please note that if an occupant refuses to provide such verification, the community can still deem the person in compliance if other evidence shows that such person is in fact 55 years of age or older, such as government records or documents (i.e. local census) prior forms or applications filled out by the person, or a statement from an individual who has personal knowledge of the age, setting forth the basis for such knowledge and signed under penalty of perjury.

The Federal Rules provide that a summary of occupancy survey must be available for inspection upon request by any person, and that such may be used and are admissible in an administrative or judicial proceeding involving the age restrictions.

In order to remain a senior community, it is important to comply with these procedures. If you need any assistance in enforcing such provisions, drafting an appropriate survey or affidavit, or have any questions, please contact us.