# Title 46 — Labor Commissioner

## Article 46-05 — Housing

## Chapter 46-05-01 — Housing for Older Persons

or Older
### § 46-05-01-01. Housing for persons who are fifty-five years of age or older - Definitions.

1. The provisions regarding familial status and age in North Dakota Century Code chapter
14-02.5 shall not apply to housing intended and operated for persons fifty-five years of age or
older.
2. For purpose of this chapter, "housing facility or community" means any dwelling or group of
dwelling units governed by a common set of rules, regulations, or restrictions. A portion or
portions of a single building shall not constitute a housing facility or community. Examples of a
housing facility or community include a:
a. Condominium association;
b. Cooperative;
c. Property governed by a homeowners' or resident association;
d. Municipally zoned area;
e. Leased property under common private ownership;
f. Mobile home park; and
g. Manufactured housing community.
3. For purposes of this chapter, "older person" means a person fifty-five years of age or older.
History: Effective January 1, 2010.
General Authority: NDCC 14-02.5-11
Law Implemented: NDCC 14-02.5-11; 24 CFR 100.304
### § 46-05-01-02. Eighty percent occupancy.

1. In order for a housing facility or community to qualify as housing for older persons under North
Dakota Century Code section 14-02.5-11, at least eighty percent of its occupied units must be
occupied by at least one person fifty-five years of age or older.
2. For purposes of this chapter, "occupied unit" means:
a. A dwelling unit that is actually occupied by one or more persons on the date that the
exemption is claimed; or

b. A temporarily vacant unit, if the primary occupant has resided in the unit during the past
year and intends to return on a periodic basis.
3. For purposes of this chapter, "occupied by at least one person fifty-five years of age or older"
means that on the date the exemption for housing designed for persons who are fifty-five
years of age or older is claimed:
a. At least one occupant of the dwelling unit is fifty-five years of age or older; or
b. If the dwelling unit is temporarily vacant, at least one of the occupants immediately prior
to the date on which the unit was temporarily vacated was fifty-five years of age or older.
4. Newly constructed housing for first occupancy need not comply with the requirements of this
section until at least twenty-five percent of the units are occupied. For purposes of this
chapter, "newly constructed housing" includes a facility or community that has been wholly
unoccupied for at least ninety days prior to re-occupancy due to renovation or rehabilitation.
5. Housing satisfies the requirements of this section even though:
a. There are unoccupied units, provided that at least eighty percent of the occupied units
are occupied by at least one person fifty-five years of age or older.
b. There are units occupied by employees of the housing facility or community, and family
members residing in the same unit, who are under fifty-five years of age, provided the
employees perform substantial duties related to the management or maintenance of the
facility or community.
c. There are units occupied by persons who are necessary to provide a reasonable
accommodation to disabled residents and who are under the age of fifty-five.
d. For a period expiring January 1, 2011, there are insufficient units occupied by at least
one person fifty-five years of age or older, but the housing facility or community, at the
time the exemption is asserted:
(1) Has reserved all unoccupied units for occupancy by at least one person fifty-five
years of age or older until at least eighty percent of the units are occupied by at
least one person who is fifty-five years of age or older; and
(2) Meets the requirements of sections 46-05-01-03 and 46-05-01-04.
6. For purposes of the transition provision described in subdivision d of subsection 5, a housing
facility or community may not evict, refuse to renew leases, or otherwise penalize families with
children who reside in the facility or community in order to achieve occupancy of at least
eighty percent of the occupied units by at least one person fifty-five years of age or older.
7. When application of the eighty percent rule results in a fraction of a unit, that unit shall be
considered to be included in the units that must be occupied by at least one person fifty-five
years of age or older.
8. Each housing facility or community may determine the age restriction, if any, for units that are
not occupied by at least one person fifty-five years of age or older, so long as the housing
facility or community complies with the provisions of section 46-05-01-03.
History: Effective January 1, 2010.
General Authority: NDCC 14-02.5-11
Law Implemented: NDCC 14-02.5-11; 24 CFR 100.305

### § 46-05-01-03. Intent to operate as housing designed for persons who are fifty-five years of

age or older.
1. In order for a housing facility or community to qualify as housing designed for persons who are
fifty-five years of age or older, it must publish and adhere to policies and procedures that
demonstrate its intent to operate as housing for persons fifty-five years of age or older. The
following factors, among others, are considered relevant in determining whether the housing
facility or community has complied with this requirement:
a. The manner in which the housing facility or community is described to prospective
residents;
b. Any advertising designed to attract prospective residents;
c. Lease provisions;
d. Written rules, regulations, covenants, deeds, or other restrictions;
e. The maintenance and consistent application of relevant procedures;
f. Actual practices of the housing facility or community; and
g. Public posting in common areas of statements describing the facility or community as
housing for persons fifty-five years of age or older.
2. Phrases such as "adult living", "adult community", or similar statements in any written
advertisement or prospectus are not consistent with the intent that the housing facility or
community intends to operate as housing for persons fifty-five years of age or older.
3. If there is language in a deed or other community or facility document which is inconsistent
with the intent to provide housing for persons who are fifty-five years of age or older, the
commissioner shall consider documented evidence of a good-faith attempt to remove such
language in determining whether the housing facility or community complies with the
requirements of this section in conjunction with other evidence of intent.
4. A housing facility or community may allow occupancy by families with children as long as it
meets the requirements of section 46-05-01-02 and subsection 1 of section 46-05-01-03.
History: Effective January 1, 2010.
General Authority: NDCC 14-02.5-11
Law Implemented: NDCC 14-02.5-11; 24 CFR 100.306
### § 46-05-01-04. Verification of occupancy.

1. In order for a housing facility or community to qualify as housing for persons fifty-five years of
age or older, it must be able to produce, in response to a complaint filed under this title,
verification of compliance with section 46-05-01-02 through reliable surveys and affidavits.
2. A facility or community shall, within one hundred eighty days of January 1, 2010, develop
procedures for routinely determining the occupancy of each unit, including the identification of
whether at least one occupant of each unit is fifty-five years of age or older. Such procedures
may be part of a normal leasing or purchasing arrangement.
3. The procedures described in subsection 2 must provide for regular updates, through surveys
or other means, of the initial information supplied by the occupants of the housing facility or
community. Such updates must take place at least once every two years.

4. Any of the following documents are considered reliable documentation of the age of the
occupants of the housing facility or community:
a. Driver's license;
b. Birth certificate;
c. Passport;
d. Immigration card;
e. Military identification;
f. Any other state, local, national, or international official documents containing a birth date
of comparable reliability; or
g. A certification in a lease, application, affidavit, or other document signed by any member
of the household age eighteen or older asserting that at least one person in the unit is
fifty-five years of age or older.
5. A facility or community shall consider any one of the forms of verification identified above as
adequate for verification of age, provided that it contains specific information about current
age or date of birth.
6. The housing facility or community must establish and maintain appropriate policies to require
that occupants comply with the age verification procedures required by this section.
7. If the occupants of a particular dwelling unit refuse to comply with the age verification
procedures, the housing facility or community may, if it has sufficient evidence, consider the
unit to be occupied by at least one person fifty-five years of age or older. Such evidence may
include:
a. Government records or documents, such as a local household census;
b. Prior forms or applications; or
c. A statement from an individual who has personal knowledge of the age of the occupants.
The individual's statement must set forth the basis for such knowledge and be signed
under the penalty of perjury.
8. Surveys and verification procedures which comply with the requirements of this section shall
be admissible in administrative and judicial proceedings for the purpose of verifying
occupancy.
9. A summary of occupancy surveys shall be available for inspection upon reasonable notice and
request by any person.
History: Effective January 1, 2010.
General Authority: NDCC 14-02.5-11
Law Implemented: NDCC 14-02.5-11; 24 CFR 100.307
### § 46-05-01-05. Good-faith defense.

1. A person shall not be held personally liable for monetary damages for discriminating on the
basis of familial status, if the person acted with the good-faith belief that the housing facility or
community qualified for an exemption under this chapter.

2. a. A person claiming the good-faith belief defense must have actual knowledge that the
housing facility or community has, through an authorized representative, asserted in
writing that it qualifies for a housing for older persons exemption.
b. Before the date on which the discrimination is claimed to have occurred, a community or
facility, through its authorized representatives, must verify, in writing and under oath or
affirmation, to the person subsequently claiming the defense that it complies with the
requirements for such an exemption as housing for persons fifty-five years of age or
older in order for such person to claim the defense.
c. For purposes of this section, an authorized representative of a housing facility or
community means the individual, committee, management company, owner, or other
entity having the responsibility for adherence to the requirements established by this
chapter.
d. For purposes of this section, a "person" means a natural person.
e. A person shall not be entitled to the good-faith defense if the person has actual
knowledge that the housing facility or community does not, or will not, qualify as housing
for persons fifty-five years of age or older. Such a person will be ineligible for the
good-faith defense regardless of whether the person received written assurance
described in subdivision b.
History: Effective January 1, 2010.
General Authority: NDCC 14-02.5-11
Law Implemented: NDCC 14-02.5-11; 24 CFR 100.308
