ada abuse

I am confused on if it's a 55 and above community, how did the son buy the home? Shouldn't the OWNERS be above 55 to purchase in the first place? Seems there was a violation on the HOA's behalf to start with. Where in your documents does it give you the right to place fines and for how much? It had better be in your documentation and allowed by law before you can file any kind of legal action. Some states don't allow liens or foreclosure for fine violations.

The HOA can't interfere with the owner's contract. This includes renters and tenants. The owner has to control what goes on in their home. The HOA can hold that owner to the rules but they can't demand lease agreements approval unless it's written in the documents.

You can't judge someone's health or wealth by looking at them. It's just begrudging something when you do. Sounds like this woman is VERY lucky to have family in her life when she is older. Most older and elderly people I know...that doesn't happen very often. I can't judge what her health level is and nor do I hope she's in bad shape to justify an excuse. Sounds like you would rather see her running around in a wheelchair to justify her illness than an SUV and taking care of herself. Take a different perspective on this and put yourself in their shoes...They have neighbors who complain about everything they do and have to justify everything. Not fun is it?

Is this what is stated in your governing documents or is it a requirement of your municipality for a 55+ community? It is NOT a requirement of the federal law (Federal Fair Housing Act) for a 55+ community.

To qualify as an 55+ community the Federal Fair Housing Act only requires that one occupant (not necessarily the owner) of a unit be age 55 or older in at least 80% of the units. In other words, federal law does not require that all occupants in all units be 55 or older. Children may purchase units for the qualifying parents to live in. Also, children under 55 and 18 or older may live with their parents according to federal law without jeopardizing your 55+ status, unless your municipal zoning laws or CCRs say otherwise.


What makes you believe this? Can you quote the section of the law that you believe is being abused?

You can find copies of the Fair Housing Act and the Americans With Disabilities Act online to refer to.

Associations that are filed under the ADA 55+ living laws say that 1 person must be 55, not everyone living in the unit. Unless your governing documents say that EVERONE living there must be at least 55, then it will not matter how old the family members are. Does not matter who owns it either because you will find that a great percentage of these 55+ homes are in their childrens names. That is very legal to do.

And again, exactly what do your documents say for who can own a unit?

our docs are very clear all persons residing in these condos must be 55 years old we had a case of a perspective owner who was 55 her husband was 53 1/2 she was denied.

This is not answering LynneM question - but to clarify the requirements a bit, since BruceF1 posted sections from the Federal law (I am not sure this is the latest).

From the Federal Register / Vol. 64, No. 63 / Friday, April 2, 1999 / Rules and Regulations:

There continues to be confusion concerning what is often referred to as the 80/20 split. HOPA states that the minimum standard to obtain housing for persons who are 55 years of age or older status is that ‘‘at least 80%’’ of the occupied units be occupied by persons 55 years or older.

There is no requirement that the remaining 20% of the occupied units be occupied by persons under the age of 55, nor is there a requirement that those units be used only for persons where at least one member of the household is 55 years of age or older.

COMMUNITIES MAY DECLINE TO PERMIT ANY PERSONS UNDER THE AGE OF 55, MAY REQUIRE that 100% of the units have at least one occupant who is 55 years of age or older, may permit up to 20% of the occupied units to be occupied by persons who are younger than 55 years of age, or SET WHATEVER REQUIREMENTS WHATEVER THEY WISH, as long as ‘‘at least 80%’’ of the occupied units are occupied by one person 55 years of age or older, and so long as such requirements are not inconsistent with the overall intent to be housing for older persons.

Lynne,

In your original post you stated you believed this particular homeowner was in violation of federal laws regarding adult (55+ communities)(The Federal Fair Housing Act) and the Americans With Disabilities Act. I have read copies of both (and have them stored on my computer) and it does not appear to me to be the case. Since you were mistaken on that issue, I cannot help but question your interpretation of your documents, which appears more strict that I've seen with some other HOAs. You may be 100% correct, but I think it might be helpful if you could post for us the exact wording regarding use and occupancy from your documents to see if others in this forum arrive at the same interpretation as you do. It would be educational for all of us.

Lynne,

Thanks. Interesting. If this an exact quote I do see a problem here. The words used are "allow temporary occupancy of units by persons under age 55 if the sole purpose of the occupancy is for a short term visit" and "occupancy by a person(s) under age 55 for long periods of time" but nowhere is it defined what constitutes a "short term visit" or what constitutes a "long period" of time. How then, is one to know? Is a short term visit less than one month? Three months? Six months? What is a long period of time? Is it greater than three months? Greater than six months? Greater than a year? You see, the problem here is that it is arbitrary and you might have difficulty enforcing it if you were challenged in court. What may be a "long" to one person might be "short" to another. I would think your documents would have to be more specific to successfully defend a challenge.

Lynne,

Another issue I have is that some HOAs sometimes shift the burden of proof. For example, in your OP you stated "we told the owner the fines would continue until he could provide proof (lease agreement, utility bill etc.)that the persons that were in the unit on a regular basis had verifiable addresses elesewhere (sic)." I should think the burden of proof should be on the HOA to prove that the underage people in the unit on a regular basis don't have verifiable address elsewhere. You have the burden of proof backwards and have basically convicted someone based solely on your beliefs and assumptions. It would be interesting to see how this plays out if it ends up in court.

I have also seen other deed restrictions that have contained unenforceable sections, most often with respect to satellite dish antennas. These things happen because the individual(s) who prepared the deed restrictions probably did so without the benefit of sound legal advice.

Lynne,

To further provide some clarification, I did some research this morning. You titled this thread in your OP "ada abuse." As a result of my research my opinion is that the occupant (tenant or whatever, it doesn't matter) is not abusing the ada, rather, it is the other way around; your association may be in violation of federal law. Here is what I found:

The following paragraphs were extracted from a document published by the Department of Housing and Urban Development and appears in the Federal Register, Vol. 64, No. 63, Friday, April 2, 1999.

"24 CFR Part 100 Implementation of the Housing for Older Persons Act of 1995; Final Rule, May 3, 1999"

"The final regulation retains the provision that a unit occupied by a person or persons as a reasonable accommodation to the disability of an occupant need not be counted in meeting the 80% requirements. This provision ensures that a community or facility seeking to authorize the reasonable accommodation for a resident who, because of a disability, requires an attendant, including family members under the age of 18, residing in a unit in order for that person to benefit from the housing will not have its exemption adversely affected by permitting the accommodation. The authority for this provision arises under the Act’s requirement that reasonable accommodations be provided to persons with disabilities."

To keep things as short as possible, I will post only the most relevant paragraphs. Any emphasis is mine.

"§ 100.305 80 percent occupancy."

"(a) In order for a housing facility or community to qualify as housing for older persons under § 100.304, at least 80 percent of its occupied units must be occupied by at least one person 55 years of age or older."

"(e) Housing satisfies the requirements of this section even though:"

"(4) There are units occupied by persons who are necessary to provide a reasonable accommodation to disabled residents as required by § 100.204 and who are under the age of 55."

Reference is made to § 100.204 which states:

"It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas."

"Person" includes entities such as homeowners or condominium associations. Also, note the broad definition of what constitutes a handicap or disability (taken from The Americans With Disabilities Act of 1990, as Amended (ADA); Title 42, Chapter 126):

"Sec. 12102. Definition of disability

As used in this chapter:

(1) Disability

The term "disability" means, with respect to an individual

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).

(2) Major Life Activities

(A) In general

For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."

Also note that the ADA does not allow the association to require documentation (such as a letter from a doctor) nor can the association inquire as to the exact nature of the disability. All the association needs to know is that this person "needs help with daily activities" and that the underage occupant performs the necessary help. Also, the underage occupant does not need to be a family member.

My conclusions from all of the above are these:

1. Your original post stated as one basis for denying occupancy to the underage person was that the association did not want to jeopardize its 55+ status. Regardless of what your documents state, according to § 100.305(a) and § 100.305(e)(4) above there is no such risk, so your association cannot use this argument.

2. § 100.204 above states your association is required to make an exception in the application of its governing documents to allow an individual under the age of 55(a caretaker) to reside in the unit to help the age-qualified individual with daily activities. By failing to make such an exception your association may be in violation.

3. Because of 1 and 2, your association has no basis for levying a fine. Also, was there a hearing held before any fines were levied? If not, a court could reject any fines on that basis as well.

4. If a claim is made in court, the court is likely to ask, "how has the association be harmed by the underage individual living there?" The answer, because of the information I posted here, is that it hasn't been harmed.

The above is my opinion. I am not a lawyer. But I believe your association is on shaky ground.

Kudos! Boards have to tred this lightly. Really, a caregiver can be anyone. Here in California we have one of the largest 55+ living areas. It has it's own zipcode!

Under 55's can NOT live there unless they are... caregivers. THE ONLY exception. HOWEVER! A caregiver could be a daughter a granddaughter a hired individual... it's up the person who hired the or arranged the caregiver.

Really? Who are we to or the BOD to analyze how bad someone's physical issues are? That NOT the BOD"s business and opend them up to legal issues.