retirment community empty units must be reserved

Bonnie,

I would really hope that your attorney researched this issue before sending those three letters. Why not let your attorney handle this? He has far more access to information via Westlaw and other online lawyer resourses than you could ever hope to see.

Since a HOA typically does not own the property it may be difficult to have those limits. It may be more on the mortgage company side if most loans are federally backed. Your HOA would need a penalty in place for those in violation.

As for your underaged resident your HOA may have an issue there. A HOA can not interfere with the contract of an owner. It is the owner's responsibilty to enforce the HOA rules on their tenant. It is the HOA position to hold the owners feet to the ground and not the tenant.

If this was a case of squating your HOA and the owner could enforce an eviction. The HOA acting as a witness. The owner the filer of the case. However, you mentioned the owner is aware of the tenant living there and not evicting them. Your HOA may be stepping out of its bounds.

This is just a heads up on what you could expect. We had a squater once with owner out of town. We had to act as his witness and reported it to them. After that it is the owner problem. Since your HOA may not have penalties in place for rule violations you all may want concentrate on that instead.

Well make sure your state and CC&R's allow you to fine. If you read Tim's post about Virginia fining is not necessarily allowed. So be careful on fines. Plus the fact that many states do not allow them to be the basis of liens or foreclosures really can hinder ever putting them into place. As long as members don't know this information, most will feel obligated to pay fines and treat it like a punishment.

A HOA can instead remove a violation like an unapproved or dangerous fence and bill the owner. That is different. Let's say the owner installs a fence that is unapproved and doesn't match anyone else's. The HOA instead of issuing fines can remove the fence at their cost and send the owner the bill. If that owner does not pay the bill that bill can be the basis of a lien. (Not foreclosure). The fence has to be on common property though and managed by the HOA. I know a few worry about "Trespassing" laws and such but on common area it isn't necessarily trespassing. Although you may feel better in gaining the proper legal access and notifications. That's a choice of your HOA on how best to handle that.

It is just removing one's tenant, the HOA has little they can do. Tenant's have rights too even the owner can't violate. Did you know a renter could stop paying rent up to a year and not get evicted legally? So your HOA has to realize the timeline of an eviction does not match what you all may have in your mind. It is 2 10 work day notices in my area plus and additional 2 weeks for the sherrif's department to come out if they don't obey. That's atleast 30 days for a normal eviction. Just keep that in mind when you create time limits on such matters. Look at what the laws in your city/county allow.

Bonnie,

You really need to seek the advice of an attorney before you find yourself on the wrong end of a lawsuit.

The FHA does say that 20% of the units may be occupied by a person (or persons) who are under age 55, but it does not limit those individuals to spouses or descendents of deceased individuals who were over 55. They can be anybody as far as the FHA is concerned. Some states or localities may have more stringent requirements than the FHA, so you may want to look there.

Relying on previous discussions at board meetings is not a good idea. That source is totally unreliable because the person or people who participated in those discussions may not have had the slightest idea what they were talking about. Find something in writing (such as your Declaration or some law or local ordinance) that states that underage individuals occupying a unit must have inherited the unit from a deceased individual who was over 55. As I said, the FHA is not the place to start because it doesn't say that.

Better still, consult a competent attorney.

Bonnie
I live in a retirement community in CA where the laws are more sophisticated than just about anywhere, and I will admit up front to complete ignorance of your state laws. One thing I do know for sure is this: You are paying your current lawyer for the time it is taking him to learn about condo law. You really need an attorney who is competent in this specialty already. It's not just a matter of being able to read and understand the laws, but also the experience of knowing the best strategy to use, since it is likely that certain judges will also be unfamiliar with condo law (it happens here)
and an experienced attorney will take that into account when deciding the best place to bring the case. This is not a small claims matter, or one to "practice" on. IMO.

When it comes to senior housing you also have to consider federal regulations, which I assume are also outside the expertise of your young attorney. You could try contacting someone in HUD by going to this web page and finding your closest state office. There likely will be someone there who can refer you to more knowledgeable members of your own community who can help you stay within the law while you attempt to evict this person. Be warned though, it is a very, very expensive and time-consuming thing to do, especially if your own governing documents are not extremely clear on the occupancy restrictions of your community.

If this man is not a real threat or menace to the other residents, I would think very hard before taking the first step toward a court-ordered eviction. Perhaps somebody can find out from the owner how long the guy plans to stay, or whether the owner intends to sell anytime soon. Having seen first hand the difficulty we once had trying to evict an illegal (but determined to stay) resident who actually was a bonifide threat to her neighbors; even with the whole community aligned and one of the most experienced law firms on the job- well I'd certainly try every single other option FIRST!

Good Luck to you.

http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/pha/contacts

Bonnie-

I think you know that the strapping young man is not afraid of you. He is posturing. So have the other neighbors keep their eyes open, while you pretend not to notice anything. You do not want this to escalate. Any drama would have the opposite effect you seek.

The owner's son seems to be hiding out, may be desperate, and could easily be setting the stage to blame either your BOD, or YOU personally for something, I don't know what, but desperate people have been known to misuse the legal system to try to manipulate their own circumstances in some way. That's why I would avoid him if I were you.

The good news is that the unit is on the market. I suggest all the nearby neighbors sweep their stoops and plant a pot of poseys. Or all of you could chip in and put a pot of flowers on HIS porch. Be as kind as possible to any realtors or home-shoppers who may show up, and pray that it sells soon.

Your belief that your board is stuck with the lawyer is mistaken. You have a perfect opportunity to thank him for his help and tell him you will take his research (which you've paid for, after all) and keep it for the future when you may wish to proceed further. You hired him. You are perfectly within your ritghts to use his work product, research etc. at any time later, even if you give it to another lawyer. If you feel so indebted to him, as it seems you do, give him an extra hour's pay. But let him go. Really.

Is this guy stalking or harrassing or assaulting any residents? Destroying common area property? Cooking meth inside the unit? Running a brothel?

Or is he just annoying? Is everyone annoyed, or just the board, or just the neighbors closest to his unit?

Bonnie, if you are the closest neighbor and the one most bothered by this guy, you need to find a way to be patient. It has only been 6 months, and the holiday season is always a slow time for R.E. sales. Give it some more time. The market is picking up.

Meanwhile, there are many creative ways to encourage a sale from behind the scenes if your board agrees that is what they want. No lawyers needed.

For instance: your board could get the escrow package together be ready to offer it to the realtors so that they can have everything they need to facilitate a quick sale if they find an interested buyer. If your board meetings are civil, you could offer an invitation (through the listing agent) to a prospective buyer so they can see what nice people live there. It's doubtful that any buyers would take you up on the offer, but the unusual offer will impress the realtors who will assume (and communicate to their buyers) that it means you must really be a particularly nice group. I'm sure you all can think of many other ways to help this place sell. Take this opportunity to get your rules and policies in order so that they are ready to give to a new (or even prospective) buyer.

I have seen several properties in my area go on and off the MLS in 1 day. The market really is heating up. A sale is what you need. Visualize a SALE! Then work collectively toward getting off to a great start with the new owner.

Elaine

Elaine,
one of the problem we have with this lawyer is that he does not bill us in a timely fashion.

That is exactly why almost everyone is upset. Our documents prohibit someone underage from living in the building. He is in direct violation of our doucments.
One man was concerned that we may get college kids who have late and loud parties. Once we allow one, the floodgates may open.

Our doucment (Master Deed) state "Each Occupant and each Owner residing in an Apartment be at least fifty seven years of age, however, such restriction shall not apply to the spouse of an Occupant or Owner residing in an Appartment...."

We do need to update our document to state 55 years of age, but that is another issue.