family members

Michael,

Are you currently making the children move out after 2 weeks (as the current bylaw requires)?

If not, then how is changing the time frame to 4 months going to change anything?

Is the term "guest" defined? If so, does it include immediate family?

There could be many ways to work with this.

If you don't mind the children returning to the nest (so to speak) then simply define guest as those individuals who are not the immediate family or are not the unmarried immediate family.

The BOD did not push the 2 week limit. They are changing the bylaws to state 4 months. How they intend to enforce it, I do not know. Will know in 2 weeks when we have a meeting.
The by laws only say guests, no definition.

My real question is the enforcement of this rule. Considering most states don't allow fines to be the basis of liens or foreclosures, what other remedy do you have to take care of the situation? You can have a rule on the books all day long, but have no punishment set up for it. I would find it hard to believe such a rule against family living with family in a set time limit would be an issue one needs to even enforce. (Except at the holidays LOL).

I think this is just a bad rule all around and should be presented to the entire membership for a vote. It's not like your HOA is going to lose it's status of being a 55 Plus HOA. Ownership is still only for those who meet that criteria.

MichaelJ,

You post “55 and over Condominium” – is that designation per the Federal “Housing for Older Persons Act of 1995?

Michael,

You mentioned that the age restrictions were in the “bylaws.” Age restrictions, as well as any other restrictions on the use of the property, must be set out in the recorded covenants. Bylaws are the internal rules for the incorporated association and cannot be used to create property restrictions. See Wilson v. Playa Serrano, ___ P.3d __, ___ Ariz. ___, (App.2005).

Also see Section 6.7(3), Restatement (Third) of Property:Servitudes (2000), which provides, “Absent specific authorization in the declaration, the common-interest community does not have the power to adopt rules, other than those [designed to protect the common property], that restrict the use or occupancy of, or behavior within, individually owned lots or units.”

You wrote that yours is a 55+ community. Has your association adopted the FHA rules for being a 55+ community or have you just gone off and created a bunch of rules that may or may not conform to the federal rules?

The problem is that if you did not adopt all the rules you may be liable for discrimination lawsuits. “Additionally, we note that Congress declared that covenants restricting occupancy to adults are discriminatory and illegal in 1988 when it passed the FHAA. 42 U.S.C. §§ 3601 through 3631.”
Wilson, paragraph 14.

My understanding is that in a 55+ community, you may prohibit residency by those under 18, but may not prohibit anyone else provided that at least one occupant of the unit is 55 or older.

My recommendation is that you seek advice from an attorney knowledgeable about FHA 55+ communities.

MichaelJ,

Re your opinion: “I think it is wrong to tell someone, who cannot find work, that they must leave because they are staying too long".

I may agree with you, but until I know whether or not your Association is a “55 and older community” as defined by the Federal Government – and in good standing – meaning that you currently meet all the Federal Fair Housing requirements to be a “55 and older community”, there is not enough information to comment.

Because you apparently want to allow out-of-work adult children live with their parents until they find work – then your first step IMO is to determine the “55 and older” status of your Condominium Association.

As others have pointed out, if you are a “55 and older” community there are guidelines to follow re “residency” requirements – which is what you are asking about.

Here is a website that gives an overview in “layman’s terms” of the requirements to be a “55 and older” community:

http://activerain.com/blogsview/3121286/yes-age-restricted-communities-are-legal

The "55 and older residency requirements", if applicable to your Association, will determine whether any "Guest Requirements" re length of stay written in your Documents, are, or can be enforced.

Also - while not addressing your question - but not too far off topic – HUD just issued a letter to provide an exception to the “55 and older” requirements for Associations in those areas impacted by Hurricane Sandy.

Here are a few excerpts from that letter:

"HUD has recently issued guidance which affords communities who have designated themselves housing for older persons the flexibility to open up vacant units to evacuees of Hurricane Sandy under the age of 55, without jeopardizing a community's qualification for certain legal exemptions under the Fair Housing Act.”

“Under HUD's new guidance, a private provider of housing for older persons anywhere in the country may make units available to evacuees under the age of 55 and continue to qualify for the Fair Housing Act's familial status exemption, as long as the vacant units are made available to evacuees without restriction on the basis of familial status.”

To find that letter and attachment go here:
http://portal.hud.gov/hudportal/documents/huddoc?id=sandyguidance.pdf

Also you might be interested in this website, citing various “court cases” and decisions rendered which I hope is on topic as I have had time to only skim this report).

http://themossreport.org/?tag=hopa

Tim,
The BOD is afraid that if they do not start some sort of enforcement, sometime down the road, someone will bring in a family member or quest that will stay forever. They want this community to be a 55 and over, period, like they was led to believe when they purchased their unit. (2 people, max, the per unit, not sure how to state that fact but that is what it is).
As far as our association being 100% legal, I wouldn't bet a dollar on it. Our declaration states 55+ but the developer has sold one to someone under 55. So in closing I believe if we ever had legal action taken against the association we would be in a world of hurt. In fairness, I was on the board but nobody would listen to me, so i gave it up.

Michael,

As I understand, and simplifying somewhat, “55 and older status” is based upon RESIDENCY requirements. It does not matter what age the Owner of a Unit is, assuming that the Owner does not live (reside) in that Unit.

Also the 80/20 Rule might apply, which allows 20% of the Units, Maximum, to be occupied by persons younger than 55, unless modified by your Declaration to be more restrictive.

A possible example for one of the 80% Units: One of those Condos could be owned by a 25 year old son who does not live (reside) there – but his parents do - at least one of whom is 55 or older - and so the “RESIDENCY Requirement” is met.

Would you be willing to post the exact words from your Documents re the existing requirements of two (2) people max per Unit, and also the “rule” about Guests not being allowed to stay for more than two weeks?

It would be helpful to know the exact wording. Thank you.

as far as I am concerned my children regardless of age are not my guests...

the ruling is in the declaration that was filed with the county court house in year 2008. It does not have a subtitle just rule 22 Guests.

EllieD
Next week we will have a meeting addressing the guest solution. We will see how that turns out. I do know one owner and his spouse has contacted their lawyer to study the declaration. The owners has an adult son staying with them because of lack of finding work. One other owner has her daughter living with her until the daughter can get back on her feet financialy. These arrangements seems to be bothering some people. What a world we live in!!!!!!!!!!!!!!!
As far as the 80/20 rule, the board knows nothing about it nor do they want to. There is nothing in our declaration about it and thats as far as they want to go.
I think BOD is going to go this way. Stay 4 months and and then ask for permission to stay longer due to hardship. I will not know until meeting.

MichaelJ8,

Roughly how many Condo Units are there? You have never mentioned a Management Company. Are you self managed?

Michael

I am not nor do I play a lawyer, but as to the above:

Each Unit Owner and/or permanent resident must be 55 years old or older.

I see no definition as to "permanent resident". Unit owner is clear but "permanent resident" is not defined.

My first wife might have said she was the permanent resident in my home....and I would not have disagreed with her until we got divorced...then she became...well...another story....LOL

Again, I an not nor do I play a lawyer.