55 Plus Communities in CO

Where can I get information on establishing a 55 Plus community in CO. My HOA wants to change to this designation and says only the HOA Board can vote to change - not the homeowners. I don't know what the Colorado regs are on this.

also see:

http://www.hud.gov/offices/fheo/library/hopa95.pdf

Our CC&R's DO have a Section that states that the Board MAY make rules which limit maximum occupancy and restrict the ages of occupants. For 10 years this has never been acted on. The 28 townhome units in our gated community were never Sold to us as a 55 & Older Community. Now, the new HOA president is flexing his control muscles by instigating this (with the encouragement of our Management Company)to supposedly provide a solution for a problem that doesn't exist! We have never had any disruptive or other issue in our HOA that would precipitate this. A Booard meeting is on Tuesday the 12th - it should be pretty lively for a change!

I would stronly advise against this even if you could. I live in a 55+ community. We have having problems getting a young man to vacate his deceased grandmother's unit. (He did not inherit the unit.) He is quiet and has caused no other problems that can be proven. (Thefts started when he moved in, but new owners moved in about the same time)

Also see: http://www.hud.gov/offices/fheo/library/hopa95.pdf

Here is an excerpt from the preface:

“The Housing for Older Persons Act (HOPA), signed into law by President Clinton on December 28, 1995, amended the housing for older persons exemption against familial status discrimination. The HOPA modified the statutory definition of housing for older persons as housing intended and operated for occupancy by at least one person 55 years of age or older per unit. It eliminated the requirement that housing for older persons have significant services and facilities specifically designed for its elderly residents. It required that facilities or communities claiming the exemption establish age verification procedures. It established a good faith reliance defense or exemption against monetary damages for persons who illegally act in good faith to exclude children based on a legitimate belief that the housing facility or community was entitled to the exemption.”
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Then following are 44 Questions and Answers. Here are just a few excerpts

Question 3
What must a housing community or facility do to qualify for the 55 or older housing for older persons exemption?

Answer
In order to qualify for the exemption, the housing community/facility must satisfy each of the following requirements:

a) at least 80 percent of the occupied units must be occupied by at least one person 55 years of age or older per unit;

b) the owner or management of the housing facility/community must publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older; and

c) the facility/community must comply with rules issued by the Secretary for verification of occupancy through reliable surveys and affidavits.

Question 7
What information should a housing provider include in its survey of residents in order to calculate whether the community or facility meets the 80% requirement of HOPA?

Answer
The owner or manager should obtain the total number of units in the housing community or facility. From that number, the following units should be excluded from the calculation of the 80% requirement:

a) the number of units that have been continuously occupied by the same household since September 13, 1988, and the household did not contain and does not currently contain at least one person over the age of 55;

b) the number of unoccupied units (see question 22);

c) the number of units occupied by employees of the housing facility or community who are under 55 years of age, and who provide substantial management and maintenance services to the housing facility or community

d) the number of units occupied solely by persons who are necessary or essential to provide medical and/or health and nursing care services as a reasonable accommodation to residents.

The owner or management then should calculate the percentage of the remaining number of units that are occupied by at least one person age 55 or over as of the date of the survey or the alleged date of violation of the Act.

Question 16
May a housing facility/community impose an age limitation more restrictive than that required by HOPA and qualify for the 55 or older exemption?

Answer
Yes. For example, the housing facility/community may require that at least 80 percent of the units be occupied by at least one person 60 years of age or older. The housing facility/community may require that 100% of the units are occupied by at least one person 55 years of age or older, or that 80% of the units be occupied exclusively by persons aged 55 or older. However, the facility/community should review other state and local laws, including fair housing laws that may prohibit discrimination based on age, before establishing policies and procedures restricting occupancy based on age, or affecting survivors' rights to property, that are not covered under HOPA.

Good point. Any "new" restriction that would hurt real estate sales has little to no chance of passing.

Sooo, a forty-year-old couple with ten-year-old kids buys a home. Then the board says, "We decided to implement the age restriction. Get out."

I think it would be hard to sell the courts on the idea that the young buyer had notice of the age restriction because the CC&R's said, in effect, maybe there is and maybe there isn't. The courts in general like definite restrictions and tend to void those that are vague or subject to multiple interpretations.

See Allen v. Reed, a Colorado Court of Appeals Opinion at http://caselaw.findlaw.com/co-court-of-appeals/1464443.html for an example of how the courts deal with a vague restriction.

You would be much safer and wiser to amend your CC&R's to state in definite terms who may and who may not occupy a home within your development. If you cannot get enough support to amend the CC&R's then it would be a good idea to forget about the whole idea.

Thanks for all the replies and helpful information. I have already looked at the Federal HOPA regs and understand them. One thing I could not find in them is the number of present owners who must vote to approve this change to our CC&R's. Does it revert to the number votes specified in our Rules and Regs to make other decisions in the HOA? BTW - I am VERY much against this 55 plus Resolution that would change our CC&R's. As a real estate agent I am well aware of how it is going to affect our home values beside decreasing the pool of buyers! Our Board meeting has been changed to Feb 26th so I am trying to get my "ammunition" ready!

AliceS,

Re your question as to the number of Owners who must vote to approve an Amendment to the CC&Rs, to convert to a “55 plus community”:

I agree with Larry B that the owners would need to approve by “actually signing” the amendment.

As to how many, or what percentage of Owners would have sign, I think it could well be as RogerB posted – it “would take approval of every homeowner to do this” and “check with a good HOA attorney”.

The reason being (just my understanding, I am not an Attorney) is that any “age restrictions” must be included in the property deed, and so every deed would be affected.

You wrote you are a real estate agent, so I would assume you know an Attorney versed in property deeds and also in HOAs that you could ask to find out if all Deeds would be effected and so require the approval of all Owners.

When you get that answer, it would be informative, if you would post it.

Thanks.