Age-Targeting Marketing Can Put Builders at Risk Builders who are considering developing a seniors housing community should think twice about how they market it. They could run the risk of age targeting. “You can’t discriminate based on familial status, which is families with children ages 18 and under,” said Eric A. Berg, a partner with the law firm of DLA Piper Rudnick Gray Cary US LLP in Chicago. “The law is clear in that regard.” Builders and developers can build and market age-qualified communities that meet federal Fair Housing Act and Housing for Older Persons Act (HOPA) requirements. But Berg said builders who age-target communities that don’t meet those requirements could run afoul of the federal Fair Housing Act if they market based on familial status and should avoid this type of discriminatory practice altogether. Age-targeted communities are allowed under the law if the housing is intended for, and solely occupied by, persons 62 years or older. Or, for the 50+ crowd, federal law allows for an age-restricted community if the community is intended and operated for occupancy by persons 55 and older, with at least 80% of the units occupied by at least one person who is 55 years of age or older. Berg said age-targeted communities that do not meet those requirements are not protected and that marketing for these communities cannot discourage families with younger members from moving in. While the law is clear on print media — applications, flyers, brochures, deeds, signs, banners, posters and billboards — Berg said the law remains fuzzy on Internet marketing. “Internet marketing is still relatively new, and it takes case law a few years to catch up,” he said. He predicted that age-targeting could become a sticky issue for builders; much like mold and accessibility has been in recent years. “There isn’t a lot of case law out there, but that doesn’t mean it won’t happen,” said Berg, who noted that many cases involving age-targeting likely are settled out of court. “This has the potential to gain momentum.” But Berg emphasized that builders may avoid expensive lawsuits by adhering to the Fair Housing Act. The safest bet for builders who want to serve the 55+ market is to build age-restricted communities, which are protected by law. Berg discussed age-targeting and his handout, “Age Targeting: A Risky Plan,” at the 50+ Housing Council’s Advocacy, Legislative and Rental Seniors Housing Committee meeting at NAHB's spring board meeting. | 
