Senior community

My question regards _age restricted senior 55+ communities_, specifically single family dwellings aka “stick-built” homes (not condo, mobile or manufactured homes).

This article supported what was originally a rumor about resident age survey updates every 2 years: http://www.hoalawblog.com/2011/02/is_annual_certification_at_age_1.html

This link supports what seems to be fact and federal requirements. It is the Housing for Older Persons Act 1999 aka HOPA. http://www.hud.gov/offices/fheo/library/hopa_final.pdf

My 55+ senior community requires an age verification survey (document w/ info, copy of proof of age and signature) upon initial occupancy. Residents are not asked to update or verify the original info. There are no requests or requirements by the HOA to update every 2 years. I view these age surveys in my capacity on the rules compliance committee. I have seen docs as old as 1999 that are not verified with a current date. When I asked a BOD member, I was told that there are no updates required - "we don't get younger so once we meet the age requirement, why would we need to verify the info again?". The point was evaded. I'm supposed to accept the spontaneous answer as final - without the BOD member performing due diligence, consult with atty, good faith inquiry with expert or even a simple google search to confirm or deny the merits of the question.

I understand that the original info need not be provided each time according to HOPA. I am specifically referring to what seems to be a (‘must’) requirement in the law for regular 2 year updates in order to retain the exemption from age discrimination and senior only status (by definition in HOPA) as permitted by law.

Are there exemptions from the age survey update every 2 years that I missed?
If none exist, how do I convey to the BOD what seems to be a federal requirement for age survey updates?
Is this important/serious as as I believe it to be?

Would appreciate your comments - thank you in advance.

Hi Barbara:

Here is information regarding senior communities from Davis-Stirling:
http://www.davis-stirling.com/MainIndex/SeniorCommunitiesAgeRestrictions/tabid/1257/Default.aspx

In order to qualify and keep the qualification as housing for older persons, then said communities are to follow the provisions of the Fair Housing Act:

SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Housing for Older Persons
Act of 1995’’.

SEC. 2. DEFINITION OF HOUSING FOR OLDER PERSONS.
Section 807(b)(2)(C) of the Fair Housing Act (42 U.S.C.
3607(b)(2)(C)) is amended to read as follows:
‘‘(C) intended and operated for occupancy by persons 55
years of age or older, and—
‘‘(i) at least 80 percent of the occupied units are occupied
by at least one person who is 55 years of age or
older;
‘‘(ii) the housing facility or community publishes and
adheres to policies and procedures that demonstrate the
intent required under this subparagraph; and
‘‘(iii) the housing facility or community complies with
rules issued by the Secretary for verification of occupancy,
which shall—
‘‘(I) provide for verification by reliable surveys and
affidavits; and
‘‘(II) include examples of the types of policies and
procedures relevant to a determination of compliance
with the requirement of clause (ii). Such surveys and
affidavits shall be admissible in administrative and
judicial proceedings for the purposes of such verification.’’.

If you do not follow a potential problem you could face in the future is if someone really likes your community and they do not meet the qualifications, they can request to review your surveys and affidavits. If you cannot provide them, then potentially you cannot limit the age restriction for someone to purchase or live within your community.

Without proper documentation if someone files a judicial proceeding, then how do you plan to fight against any such potential litigation?

Hi Barbara:

You might have your HOA check with their attorney to insure everything is in compliance and how to stay in compliance in the future. If you are not in compliance, then certain items you mentioned in your first two paragraphs above may become unenforceable. Potentially if you are not in compliance and send a notice of violation to a homeowner, they in turn potentially hire an attorney, said attorney requests your documentation, etc. What is your community going to do? Will they be liable for civil money damages as stated in this section?

§ 100.308 Good faith defense against civil
money damages.
(a) 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 a
housing for older persons exemption
under this subpart.

You need to be able to establish:
1) At least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older.
2) That you have published and adhere to policies and procedures that demonstrate the intent required.
3) That you comply with rules issued by the Secretary for verification of occupancy using reliable surveys and affidavits.

As stated in the link you posted above:
http://www.hud.gov/offices/fheo/library/hopa_final.pdf

(c) The procedures described in paragraph (b) of this section 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. A survey may include information regarding whether any units are occupied by persons described in paragraphs (e)(1), (e)(3), and (e)(4) of § 100.305.

The sentence bolded above states “must” it does not state maybe, if you want to, possibly 5 years from now, etc. It would in essence be routine and as you stated similar to a census. You might point out to your HOA that the civil money damages information I noted above makes the statement “personally liable”. Again … I suggest checking with your HOA attorney.

Thanks for your interest & insightful answers, Janet. I appreciate it. Thanks David - what you posted is one more confirmation that 2 year updates are required.

Some of the board members are volitale and overly sensitive which is evident when they respond in the owners forum. It's discouraging. I don't want to be prevented from asking the question. Sensitive board members display anger and are verbally disruptive in the owner forum. Stunned observers are left with the impression that anyone who voices a minority viewpoint, hot topic or a contrary opinion will be crucified. The arguing is not good meeting decorum.

I want to keep the question/topic as simple as possible. I'm also aware from experience not to participate in the argument. Any suggestions would be appreciated.

Thank you.

Hi Janet

This issue has been unanswered for about 4 months. I failed to mention before that I had also forwarded by email an article to the member I spoke with about the survey updates being required. The article was located on our association attorney's website - there has been no acknowledgement or reply. The article supported my initial conversation & inquiry about the 2 year updates. Currently, I have no confirmation email or indication that the subject is being reviewed or abandoned by the board.

Yes I'm considering options. I considered postponing the issue in this month's meeting. I thought about sending a certified letter. Theoretically, it would be in/on the April meeting notice & agenda under correspondence received and possibly placed on the agenda for discussion under new business (since the board sets the agenda). One minor drawback is the delay of an answer for 30+ days but there is nothing wrong with that. It's not time sensitive or urgent, just serious and important to me. There would be time for review, atty consult, etc.

The other option is to print out the highlights of the law's requirements for the exemption & include the attorney's article. I could print out the email as well. I'd deliver the handout to the directors before the meeting starts. When I speak in the owners forum, they have a written reference and can follow my comments.

I have 2 days to decide which way to go. I'm willing to consider other options.

;)

I was all set to log off for the night. Glad I checked in. Thanks Janet.

Yes, there is precedent - many owners give the BOD copies of a prepared comment during the owners forum. I've not seen the board refuse this jesture.

Thanks again, Janet. You are a real gem. I appreciate all your comments on this discussion board!

Hi Barbara ... yes please keep us informed.

That was my gut feeling regarding this issue also, so I would be intersted in how everything turns out.