America's population is growing older. According to the 2000 census, more than 35 million people in the United States (12% of the total population) are over 65 years old. These figures are expected to grow dramatically in the early decades of the twenty-first century as the "Baby Boom" generation reaches retirement age and as improvements in health care make it possible for more people to live to an advanced age.
Providing housing for this segment of the American population is already a massive industry and one that will certainly grow as the number of, older persons increases. One of the crucial issues facing this industry is compliance with the non-discrimination 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. Its provisions are also 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 has been a steady increase in FHA litigation involving housing for older persons, a trend that is likely to accelerate as the Baby Boom generation ages.
Three recent cases illustrate some of the emerging issues. In United States v. Lorantffy Care Center the Justice Department sued a religiously affiliated assisted-living center for elderly Hungarian immigrants for violating the FHA by discriminating against African-American applicants. In HUD v. Country Manor Apartments, a nursing home for older persons was held to have violated the disability provisions of the FHA by requiring residents who used motorized wheelchairs to purchase liability insurance. In United States v. Resurrection Retirement Community, Inc., a large retirement development settled a disability-based FHA suit for $220,000 in monetary relief and an injunction barring it from, inter alia, imposing an "ability to live independently" requirement on its residents.
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 will fuel 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.
Unless otherwise indicated, this Article uses age 65 as the demarcation point that distinguishes "older persons" and "seniors" from the rest of the population. We recognize that this is a somewhat arbitrary choice. Some people are "old" at 50 while others seem "young" at 80, and the Fair Housing Act itself refers to ages 55 and 62, but not 65, in defining "housing for older persons." Nevertheless, 65 is the age that American society has traditionally chosen to identify when retirement most typically occurs and therefore when people are most likely to be entering the phase of life associated with being in the older generation.
Robert G. Schwemm & Michael Allen, For the Rest of Their Lives: Seniors and the Fair Housing Act, 90 Iowa Law Review 121 (2004).