Senior Care Home in Subdivision

Visitor Question: Hello we are planning to open a licensed home for seniors. We have been told it is allowed in subdivisions that have covenants/restrictions against it. We have found the Fair Housing Act and the Housing for Older Persons Act that appears to over rule the covenant.

We are looking for a definitive answer to this question. Thank you in advance.

Editors Reply: We have to reply that we are not attorneys, we are city planners. So if you want a "definitive answer," you should consult an attorney on a matter such as this.

We can offer some general observations about what we think. Even the HUD (U.S. Department of Housing and Urban Development) website says that the questions often are complicated, and they urge people who want to resolve a question or disagreement about the Fair Housing Act to try to work out a satisfactory solution rather than going to court.

Our interpretation of the Fair Housing Act is that it aims to prohibit discrimination against a particular type of housing based on the intended occupants of the housing. While age is not mentioned specifically or covered specifically, prohibiting discrimination on the basis of disability is an important element of the Act. We see nothing that says that age is automatically a disability, however.

So you are better off arguing on the basis of disability than age. (The Housing for Older Persons Act is a short amendment to the Fair Housing Act that really aims at allowing older adult communities to continue. In our opinion this isn't really relevant to your situation.)

One part of the answer to your question is whether the Fair Housing Act prohibits and overrides discriminatory provisions in subdivision covenants and deed restrictions or master deeds.

We think the answer to this question clearly is yes. Otherwise the entire Act would simply be circumvented by applying new deed restrictions. Clearly that was not the intent.

So then the next part of the question is whether a licensed home for seniors enjoys some type of protection as a result of the Fair Housing Act.

We think (and again, we are not attorneys) that the answer lies in the number of unrelated persons that otherwise are allowed to live together in one residence in the subdivision. If the answer is one family as defined by the zoning law plus two unrelated persons, your licensed home for seniors would not be allowed--unless you argue that seniors are protected under the Fair Housing Act and any facility for seniors automatically is allowed.

We don't think that a home for any number of seniors is automatically protected on the basis that this would be discrimination. In fact, we rely on HUD's statements that the Fair Housing Act does not preclude and override local zoning.

The collective opinion of the four of us is that if you want to house more seniors than are allowed to live together as a household of unrelated people of a younger age, you are on shaky legal ground.

On the other hand, if six unrelated people are allowed to live in one house, then six seniors must be allowed to live in one house--or else be found in violation of the Fair Housing Act.

Now the gray area arises if you want to have seven unrelated seniors when a maximum of six unrelated 30-year-olds are allowed. A court might well rule in your favor in that case, on the basis that the seniors are less likely to have cars, make noise, have visitors, and so forth.

Considering that we don't know the details of how many people you are licensed to have, and how many unrelated people are allowed under the covenants and/or the zoning ordinance, we just offer the general advice that we think you will be far better served to seek a location that allows for a good number of unrelated people to live in one large building. Ordinarily that would be a multi-family zoning district.

We know that might be a more expensive route for you, but it is the one that would be much more certain to provide a good legal basis for your investment going forward.

Also our advice would be to start off on a good footing with your neighbors. You could win on the legal technicality, but encounter a lot of unwanted hostility to staff and residents as a result. You don't want that headache.

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