age requirement

Started by BonnieG1 • 7 replies • 2089 views

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BonnieG1 (Nebraska)
Posts: 1,186

Posted:

We have an eighty year old woman with a 51 year old son who wants to lease a unit. Of course it would be the owner who leases the unit, but the Association dictates the term of te lease.

One Board member thinks we should lease to her "to fill up the units."

This is a email I mailed to the other Board members.

I looked at the sections of the Master Deed dealing with the age requirement. The Board is not allowed to give a waiver for the age. On page 9 Article 6 section D deals with leasing. We can give a waiver to "the foregoing requirements" in the event of emergencies or extenuating circumstances.............
The age requirement is mentioned in Section E "Each Occupant, and each Owner residing in an Apartment shall be at least fifty-seven years of age, provided however, such restriction shall not apply to the spouse of an Occupant or Owner residing in an Apartment.........

In a previous email to the other members, I stated that if we allow this ladies 51 yr old son to move in than I should be allowed to have my grandson move in with me.

Previouse Boards have given "waivers" for underage people. But in my opinion we need to go by what our documents state, not what a previous Board has done.

I am curious as to what other people think about this.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Is not there some something (fair housing?) that says in age restricted that 80% must meet the age requirement? Does this also say 20% do not have to?

I can understand if someone is not 57..they are not...but 51..not a kid.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By JohnC46 on 02/26/2012 12:58 PM
Is not there some something (fair housing?) that says in age restricted that 80% must meet the age requirement? Does this also say 20% do not have to?

I can understand if someone is not 57..they are not...but 51..not a kid.

I understand we need 80% of the units with residents or owner residents meeting the age requirement. If I understand correctly this is so an underage spouse could remain if the older spouse died.

Also I was informed on this site that we could me more restrictive than the law but not less restritive than the law.

Also I think this 51yr old is handicapped in some manner. His mother is taking care of him.

Our age requirement is in a section that needs 100% yes vote to be amended which brings to mind another question I will post separately.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Bonnie:

Here is a link I found from HindmanSanchez who is one of the sponsors for this website.

http://www.imakenews.com/ortenhindman/e_article000894133.cfm?x=b11,0,w

The following is stated:

Senior housing developments are exempt from the age discrimination rules, but they are not exempt from the provisions of the Fair Housing laws requiring “reasonable accommodations” for individuals suffering from physical or emotional disabilities. Accordingly, HUD’s specifies that younger caregivers of aging residents would not be counted as non-qualified residents for purposes of calculating the 20 percent cap. “This is true whether the live-in person resides in the same unit with the disabled occupant or in a separate unit,” HUD’s guidance explains. “Neither circumstance adversely affects the exemption of the housing facility/community.”
HUD’s rules also permit an under-age occupant to reside in a unit during the temporary absence of an owner who is traveling or hospitalized without altering the age-qualified status of the unit. However, the rules emphasize the “temporary” and informal nature of the arrangement. “The unit would be included in the calculation of the 80 percent occupancy requirement,” as long as the dwelling is not rented out and the age-eligible occupant “returns on a periodic basis, and maintains legal and financial responsibility for the upkeep of the dwelling.”
The status of a unit changes if the owner vacates it indefinitely, does not return periodically, and/or rents it to an under-age occupant. Under these circumstances, the occupant would be counted against the 20 percent unrestricted portion of the community.

There is a possibility that it can be reversed for elderly caring for handicapped child, especially if child became handicapped later in life due to potential stoke, etc. This is something to discuss with your association attorney.

Also, please consider where you commented:

Quote:

Also I think this 51yr old is handicapped in some manner. His mother is taking care of him.

Has the mother made such indication? I would like to respectfully recommend that the board not discuss this in emails between each other and be very careful in meetings. You do not want something to come back and haunt you later. This may be an area or item that you just refer to your association attorney. Be vague in discussions and potentially reference that it is something which potentially needs attorney to review.

Hope this helps.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Thanks, Janet

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Bonnie ... You are most welcome and I hope it helped you out. This can be a tough and sensitive situation.

BrianB (California)
Posts: 2,820

Posted:

Quote:

Posted By BonnieG1 on 02/26/2012 1:40 PM

Posted By JohnC46 on 02/26/2012 12:58 PM

Also I was informed on this site that we could me more restrictive than the law but not less restritive than the law.

One should be very cautious with this advice based on the word "restrictive". The actual legal concept is that a lower order law cannot be 'in conflict with' a higher order law.

The idea of "restrictive" can be twisted around and misapplied. For example, say a Federal law says that you can restrict sales of property in your HOA to be only those 18 and older. That's the line.

Can an HOA then say "well, we restrict it to 30 or over", and since that's more restrictive, it's okay?
-i suspect the courts would disagree with you.

Or, Can an HOA say "well, the feds say we have to sell to everyone regardless of race, creed, religion, but we are going to be more restrictive, and not sell to "people like THEM"." Again, the courts would disagree.

One must look at the wording of the law, and the intent of the law, before you can decide conflict.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Brain,
Thanks, that is what I have metioned at a Board meeting. But I was advised since the lawyer who was also a Board member said we had to stick with the age of 57, we needed to stick to the 57yr old age limit.

I agree with you that we cannot insist someone be older than 55. Thanks. This website has been a great help to me.

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