January 30, 2014

     by Kathy East, MIRM, Creating Results


Q:  How do you keep 50+ marketing on the right side of the Fair Housing Laws? I know that doing it wrong can land me in big legal trouble.

A:  For 20 years Creating Results has been helping builders market their communities and, while they cannot provide legal advice, they do have a great deal of experience in helping builders navigate and comply with Fair Housing Laws in their marketing.

The first and most important step is to make sure that everyone involved in marketing your company’s real estate reads and understands all the applicable laws and regulations governing fair housing. This includes the Federal Fair Housing Act of 1968 and its amendments, but also may include state and local laws as well. So be sure to inquire with your local governmental bodies.

By “everyone” I mean your sales staff as well as the greeter at your welcome center. Do you have your own financing company? Then be sure its entire staff also understands the laws. Don’t assume your advertising agency is up to date on the regulations, especially if you are using freelance graphic designers or a firm that does not have a lot of real estate experience.

Fair Housing Laws and Enforcement

Federal fair housing laws make it illegal to discriminate in the sale, rental or financing of dwellings on the basis of race, color, religion, national origin, gender, familial status (presence of children under the age of 18), disability, marital status, sexual orientation and gender identity.

While the Department of Justice and the Department of Housing and Urban Development often are involved in enforcing the Fair Housing Act, most complaints are filed by fair housing advocacy organizations. In order to encourage equal and fair treatment, some organizations proactively complain about builders who are not following the intent of the law and others advertise and actively solicit anyone who feels that they have been mistreated. A Fair Housing complaint can be filed against the builder or the design professional, as well as the marketing agency so it is good business to understand the law.

What about the Legal Exemptions?

HOPA, the Housing for Older Persons Act, adopted in 1995, exempts qualified senior housing from the familial status provision. Is your community qualified? It is, if:

1.     100% of units are occupied by persons aged 62 or older; or

2.     80% of occupied units have at least one person who is 55 years of age or older and the community has a policy and procedures demonstrating intent to provide housing for those 55 and older and it complies with Department of Housing and Urban development rules to verify occupancy; or

3.     The community is part of a state of federal program that specifically assist older persons.

So, if your community qualifies under HOPA that means you can “legally discriminate” based on age. Photography, for example, can show all adults (no children required) but those adults must look as if they're at least the ages noted above. I know, I know — everyone thinks they look 10 to 15 years younger than they really are, but remember — if your property qualified under #2 (above), you need to be able to demonstrate your firm’s intent to market the community to those 55 years of age or older. 

This is a good time to suggest applying some common sense. Ask yourself if your current residents would think your advertising models look like people they’ll likely be friends with.

Think of the budgetary impact as well. If you are renting a 62+ rental apartment community but all of your advertising shows people who appear 40-ish, then you’re likely to attract people in their 40s who don’t qualify — not a good use of your marketing dollars. Here are the two most important sentences in this article:

If your community does not qualify under any of the three options above, you cannot discriminate based on familial status.

That means you cannot imply through images or words that your community is only for older adults.

For our clients qualifying under #2 above, we recommend including a disclaimer in all ads and direct mail noting that the community is age-restricted and what those restrictions are (which vary based on local regulations).

I Want to Market an Age-Targeted Community

We often hear from prospective clients that they want to target communications to a particular age group, and we have to tell them that if they do that, they will be breaking the law. Legally, the only exception is for age-qualified communities through HOPA. Anything else would be discriminatory.

Of course, you can point out features of your homes, such as first-floor owner suites and maintenance-free living, that might appeal to more mature buyers. But you cannot expressly state that your homes are designed for a certain group of people or show only older people in your photography.

One option would be to let the product speak for itself through beautiful imagery but never talk about age targeting, and go out of your way to demonstrate that you are open to all protected classes. Why wouldn’t you welcome anyone who wanted to buy?

Fair Housing Isn’t Just About Age

If you are marketing a 55+ or 62+ age-restricted community, you still must comply with the other provisions of Fair Housing laws. When it comes to selecting photography, include people representative of your metropolitan area. The U.S. Census Bureau recognizes five racial categories: White, Black or African American, American Indian or Alaska Native, Asian, and Native Hawaiian or Other Pacific Islander. Note that people who identify themselves as Hispanic or Latino in national origin may be of any race.

Photos that convey your community as appealing to single people as well as couples is increasingly important. Your marketing images should demonstrate that your community welcomes everyone regardless of race, national origin, gender, etc. It is not exclusively for people of any one race, national origin or marital status.

We’re often asked if a protected class needs to be included in marketing images if there are none in the community or even in the surrounding area. The answer is yes. Include minority groups to demonstrate your commitment to fair housing — not just because it is the law, but because it is the right thing to do.

To be on the safe side, include people representing all minority groups in your metropolitan area at slightly higher percentages than the most recent U.S. Census data reports. And remember that all of your marketing efforts are included — from print ads to online ads, your website and collateral materials. 

It’s Not Just About Photos

While images hold incredible power in marketing, they aren’t the only area that must comply with fair housing laws. Make sure your written copy does not imply discrimination. There are many words and phrases that various jurisdictions have found to violate the intent of federal, state and local fair housing regulations.

I encourage you to ask your local building industry association for further information on your market area. Some words, however, are obviously red flags and should not be used, words such as exclusive, private and preferred.

Finally, don’t forget to use the equal housing opportunity slogan or logo in all of your advertising and marketing, including direct mail, your website and your welcome center. For print ads, there are standards for the size of the logo or slogan’s font. For more information, visit this page from HUD's Fair Housing library.


Kathy East serves as vice president of Client Services at Creating Results, a full-service strategic marketing agency recognized for its expertise in mature consumers (baby boomers and seniors). She directs a talented staff of marketing professionals and oversees the strategic direction of all marketing programs.

With more than 30 years of industry experience, she is a real estate marketing expert. She is a Master in Residential Marketing (MIRM) and has served on the board of directors of the Washington Metropolitan Sales and Marketing Council and as the vice-chair of the Greater Washington 50+ Housing Council. She has spoken to regional and national audiences about marketing 50+ housing.


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