By Ellen Shapiro

Every now and then it is a good idea to review statutes that applies to condominiums other than M.G.L.c.183A.  One example is the Massachusetts anti-discrimination statute, M.G.L.c.151B which contains an interesting provision for age restricted communities, i.e. those where the minimum age for occupancy is over 55 or over 62.  These condominiums are allowed to discriminate based on familial status because of the specific exception to the 1988 Federal Fair Housing Act which carved out the “Housing for Old Persons” exemption from discrimination based on familial status.

The Housing for Older Persons Act (HOPA) amended the Fair Housing Act requirements for exemption from discrimination age based on “familial status” as established in the Federal Fair Housing Act of 1995.  Housing that is designed  and operated to assist elderly persons as defined in a state or federal program Intended for and solely occupied by persons over 62 years of age or older or housing where at least 80%  of  units are occupied by at least  one person  who is 55 years of age or older will not be subject to fines or penalties for discrimination base on familial status.  (Although a prior version of HOPA had required such housing to establish “significant services and facilities” to qualify for the protection, this requirement was eliminated in 1999.)   The exemption applies to a list of housing situations which includes (among other) condominiums, cooperatives, mobile home parks, manufactured home communities and home owner associations.  However, once a community has been established under HOPA the responsibility for maintaining records of the percentages remains with the governing Board or management.

Every two years, the Department of Housing and Urban Development [HUD] requires a survey (often called a census) to be taken of the ages of all the occupants of the community in order to insure that the percentages haven’t dropped below the requisite numbers due to changes in occupants (whether tenants or under some other arrangement) and sales.  But it doesn’t end there. It is at this point that a review of M.G.L.c. 151B Section 4 Subsection 7 yields additional information. Massachusetts General Laws CHAPTER 151B, SECTION 4, PARAGRAPH 7.

Almost at the very end of Subsection 7 it states “The word “age” as used in this subsection shall not apply to residency in communities consisting of either a structure or structures constructed expressly for use as housing for persons 55 years of age or over or 62 years of age or older if the housing owner or manager registers biennially with the [Massachusetts] department of housing and community development.” (Emphasis added.) The registration form can be found on the  Department of Housing and Community Development in the Legal Guidance, Resources and Forms section.

Some might ask what could happen to the community if it failed to complete the form and register with the DHCH.  In today’s world, where people are just looking for ways to sue community associations, failure to register might operate to remove the community from the safety of the exclusion if a young family wanted to buy a unit or home in an age restricted community and were told they couldn’t do so because they had children.  Would the failure to register subject them to a finding of probable cause of discrimination, and fines and penalties, based on familial status at the Massachusetts Commission against Discrimination?  While I do not know the answer, I also do not know of any association that wants to be the test case.  It is easy enough to simply complete the form and send it in.  After all, as the saying goes, the devil is in the details.  This seems to be a detail devilishly easy to overlook.

For a copy of the Registration Form [Click Here].

For additional information contact Ellen A. Shapiro, Partner, Allcock & Marcus at or at 781 884-1660.

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