Age-Targeting Can Put Builders at Considerable Risk

Builders who are considering developing and marketing a seniors housing community to be age-targeted should think twice. Eric A. Berg, a partner with the law firm of DLA Piper Rudnick Gray Cary US LLP in Chicago, told 50+ Housing Council members at the recent NAHB Spring Board of Directors Meeting in Washington, DC, that builders should avoid this type of discriminatory practice.

Berg, who gave a special presentation titled “Age Targeting: A Risky Plan” at the Council’s Advocacy, Legislative and Rental Seniors Housing Committee meeting, told the audience that the federal Fair Housing Act provides options for particular types of seniors housing developments through the Housing for Older Persons Act (HOPA) exemption.  Berg shared that age-targeted communities, or product that is designed and marketed to older consumers but is not restricted to occupants ages 55 or 62 and older, as described in the law, is not protected.

“You can’t discriminate based on familial status, which is families with children ages 18 and under,” Berg said of age-targeting. “The law is clear in that regard.”

In particular, Berg discussed how marketing cannot discourage families from moving into a community without the protection of one of three exemptions under the Fair Housing Act, known as "age-restricted" exemptions.  At the meeting, the committee considered advertisements and all written and oral statements such as applications, flyers, brochures, deeds, signs, banners, posters and billboards. And the speaker urged builders to examine the words, phrases, photographs, illustrations and other symbols they use, which could be perceived as discriminatory.

While the law is clear on print media, Berg said the law remains fuzzy on Internet marketing. “Internet marketing is still relatively new, and it takes case law a few years to catch up,” he said.

When asked by members of the audience, Berg predicted that age-targeting could become a sticky issue for builders, much like mold and accessibility has been in recent years. “There isn’t a lot of case law out there, but that doesn’t mean it won’t happen,” said Berg, who noted that many cases involving age-targeting likely are settled out of court. “This has the potential to gain momentum.”

But Berg emphasized that builders may avoid expensive lawsuits by adhering to the Fair Housing Act. The safest bet for builders who want to serve the 55+ market is to build age-restricted communities, which are protected by law.

For more information, please see Eric Berg’s handout for a review of the federal Fair Housing Act on age-targeting. Or contact Jeff Jenkins, 50+ Housing Council, at 800-368-5242 x8292 or jjenkins@nahb.com or Mary Lynn Pickel, NAHB Director of Legal Affairs, at 800-368-5242 x8485 or mlpickel@nahb.com.

The Fair Housing Pocket Guide is available to 50+ Housing Council members at www.nahb.org/50plus in the Resources section.

This article is intended for educational and informational purposes only. Nothing contained in this article should be considered as the rendering of legal advice, and readers are responsible for obtaining advice from their own legal counsel on matters related to any applicable federal or state law, regulation, or case mentioned herein. 

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