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Preserving elders' housing rights: elderly people who have suffered discrimination are increasingly turning to federal law to secure greater housing opportunities and protect their rights.

Article Excerpt
Like many people in their 70s, Howard "Hop" Symons retired to Florida. His move to Sanibel Island in 1990 was possible only because Of Sanibel's Below Market Rate Housing program, which provides subsidized rates to people who have limited incomes. Symons, a West Point graduate and veteran, lived happily and without incident in his one-bedroom apartment until October 2002, when he received a notice that a management committee had made a "unanimous decision not to reevaluate [him] for a new lease.... The committee ... determined that [he did] not meet the program's required independent living criteria [,which] includes such things as care of self and care of the apartment." Both the city code (1) and the lease, it turned out, permit termination of the lease when the management determines that a tenant is "incapable of independent living."

Symons protested and provided detailed letters from his doctors and pharmacist saying that he was capable of independent living. One described how Symons, at 82, rode his bicycle to appointments. The apartment management, having done no medical assessment of its own, brushed aside these expert opinions and began an eviction case.

Housing discrimination against the elderly is usually based on actual, perceived of past disabilities of the older person, as Symons's case illustrates. To adequately enforce the fair housing rights of vulnerable elders a lawyer must understand and be able to apply the laws prohibiting disability-based discrimination in housing.

The primary source of legal protection for elders is Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988, commonly known as the Fair Housing Act (FHA). (2) While age is not a protected class under the act, disability is. (3) In passing the act, Congress repudiate[d] the use of stereotypes and ignorance" and rejected "[g]eneralized perceptions about disabilities." (4) In other words, Congress felt so strongly about eradicating bias that it prohibited discrimination against people who were only perceived to have disabilities, and prescribed sanctions for such behavior that are no less powerful than those for real disability discrimination.

The U.S. Department of Housing and Urban Development (HUD) estimates there may be as many as 2 million instances of housing discrimination each year, (5) but only about 25,000 FHA complaints are filed annually, most through private fair housing enforcement agencies. (6) A recent study by the National Council on Disability suggests that the administrative enforcement mechanisms at HUD and at some state and local government enforcement agencies are underfunded and performing poorly. (7) This makes the FHA's private cause of action even more important. (8) The FHA allows recovery for compensatory and punitive damages, as well as attorney fees. (9)

Elders who have suffered discrimination are increasingly turning to the FHA and the Americans with Disabilities Act to secure greater housing opportunity and choice of housing type, from rental apartments to senior-living and assisted living communities to nursing homes. These plaintiffs may encounter significant resistance from landlords, service providers, family members, and policy makers. (10) In the approaching era of tumult, trial lawyers will playa critical role in determining how effectively elders' housing rights will be enforced.

The FHA is an equal-opportunity statute; it protects people's choice to live where they want to live. That principle is easy to understand in the context of a real estate agent who turns an African-American family away from houses in predominantly white neighborhoods, of a rental manager who will not rent to families with children. For seniors and younger people with disabilities, equal opportunity means having a broad spectrum of housing choices--including single-family homes, condominiums, and rental communities--in a variety of settings that include people of all ages and abilities living side by side. In addition, people who are older or have disabilities may need or want housing that offers support and medical services for their special needs.

Historically, as people aged, they faced a stark choice between staying in their own homes or moving to nursing homes or other service-intensive settings. During the last two decades, however, an ever-broadening range of options has emerged to allow seniors to remain in their homes longer, of to make the transition more gradually into communities that have graduated levels of care and services intended to respond flexibly to need.

In the past, advocates in the fields of disability and aging have sometimes taken different approaches to the legal issues arising from this trend. Disability advocates' views tend to...

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