Seniors and the Fair Housing Act

This article courtesy of SSRN - Legal Scholarship Network and authored by Robert G. Schwemm and Michael Allen.

Abstract: Providing housing for America's senior population is already a massive industry and one that is certain to grow as the Baby Boom generation ages. One of the crucial issues facing this industry is compliance with the nondiscrimination commands of the federal Fair Housing Act (FHA). Originally passed in 1968, the FHA as amended now outlaws discrimination in most of America's housing based on race, disability, and five other criteria, and its provisions are mirrored in scores of state and local fair housing laws. Most of the prohibitions of the FHA and its state and local counterparts apply to housing for older persons, although providers of such housing often seem oblivious to the mandates of these laws. The result, coupled with a growing unwillingness of seniors to tolerate discriminatory treatment, has been the steady increase in FHA litigation involving housing for older persons, a trend that is likely to accelerate in the coming decades.

This Article analyzes the ways in which the FHA and other fair housing laws govern housing for older persons. Part I surveys the range of housing choices available to older persons and describes the demographic trends that are likely to increase the future demand for such housing as America's population grows older. Part II reviews the FHA's substantive provisions and exemptions in order to determine the extent to which this statute applies to the various types of housing for seniors. Finally, Part III identifies the key discrimination issues that are likely to arise in such housing and suggests how the FHA and related laws should be interpreted to deal with these issues.

Keywords: Fair Housing Act, disability, housing discrimination, seniors, assisted living, senior housing