N.D. Admin. Code ch. 46-05-01 § 46-05-01-02
Eighty percent occupancy
Operative Text
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.
Section 46-05-01-02 establishes the eighty percent occupancy threshold that a North Dakota housing facility must meet to qualify as "housing for older persons" under state law. At least eighty percent of occupied units must have at least one resident aged 55 or older, with specific rules for how "occupied" is defined, including temporarily vacant units. Newly constructed or recently rehabilitated housing has a grace period until twenty-five percent of units are occupied, and certain exceptions apply for staff units and disability accommodations.
Plain English — not legal advice.
Under § 46-05-01-02, operators of age-restricted communities generally track the age composition of occupied units on an ongoing basis, since the eighty percent threshold is measured at the time an exemption is claimed. Compliant facilities document which units are temporarily vacant and maintain records showing that prior occupants were 55 or older. Staff units and units housing persons providing disability accommodations are generally excluded from the calculation, but operators should be aware that evicting families with children solely to reach the eighty percent threshold is prohibited under this section.
General guidance for property managers — not legal advice for your specific situation. Consult an attorney for advice on your case.
Section 46-05-01-02 defines the occupancy rules that determine whether a community may legally operate as 55-and-older housing under North Dakota law. Tenants who believe a facility is improperly claiming this exemption without meeting the eighty percent threshold may have grounds to challenge the exemption, particularly if families with children are being displaced to reach that threshold. Tenant-rights organizations or the North Dakota Department of Labor and Human Rights can be consulted to understand available options.
General guidance for tenants — not legal advice for your specific situation. Consult a tenant-rights organization or attorney for advice on your case.
Generated October 28, 2026 — auto-generated, not yet human-reviewed. See /transparency for methodology.
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