A. Properties proposing to restrict occupancy to certain populations pursuant to specific HUD statutory authorities may be eligible for FHA mortgage insurance. This category includes, without limitation, properties operating under programs in which, pursuant to statutory authority, HUD has approved restricting occupancy to a “mixed use” population including elderly and non-elderly disabled families. Section 231 is one such program. This category also includes, without limitation, properties restricting occupancy in accordance with statutory authority provided under Sections 221 or 236 of the National Housing Act or Section 8 of the United States Housing Act of 1937. Several of these programs authorize properties to restrict occupancy to households in which at least one person is 62 years old and which may include children under the age of 18. This is FHA’s long-standing definition of elderly families and has been referred to in previous FHA guidance as “62+ HOH”. A property operating under this design may not discriminate against familial status in its admission and occupancy policies. However, if a program has statutory authorization for a specific kind of occupancy restriction, an exemption from the Fair Housing Act’s familial status provisions is not needed to operate the property in accordance with that program.
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Chapter 3 Programs 3.11 Age and Family Status Restrictions
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B. FHA mortgage insurance is compatible with projects having an elderly preference combined with project-based Section 8 rental assistance permitting non-elderly families with children under the age of 18. In these cases, the Fair Housing Act’s housing for older persons exemption (which permits the exclusion of families with children) is not implicated because the Section 8 statute and regulations require the inclusion of families with children.
C. If the project allows a “mixed population”, including elderly and non-elderly disabled persons, has been operating continuously since prior to October 1, 1991 (the effective date of Title VIII, Subtitle A of “Cranston-Gonzalez National Affordable Housing Act”, Pub. L. 101-625), and is subject to a project-based Section 8 contract, a regulatory agreement, or a use agreement executed in accordance with statutory authority, the project would meet the MAP Guide requirement. No waiver would be required as long as the Lender submits with the application the contract or agreement permitting the use and the proposed occupancy regime will continue in accordance with existing agreements in place prior to October 1, 1991.
