Eliminating Age Restriction

This is NOT a BOARD decision only. This is for the WHOLE of the HOA to decide. Look at your documents to see the proper process to change you CC&Rs. That will be a good starting point.

I am not an attorney and this in no way should be construed as legal advice.

But it seems to me that homeowners who bought into the development knowing it was age-restricted did so for that reason. They not only bought into their homes, they bought into a certain 'lifestyle' intentionally. They also configured their homes in concert with 'senior living' and this change could clearly affect resale values of those homes. Voting out the age restrictions deprives them of a property right they had imo. I have to believe thatif the HOA take this action, it could be challenged successfully in the courts (i.e. breach of contract, ultra vires, selective treatment, etc).

I do not believe that a set of neighborhood Covenants can blow away such property rights prescribed by federal HUD/HOPA guidelines. The HOA is playing with fire here.

Most interesting tho -- I will stay tuned to this thread.

Most of the case law on this subject is just the opposite: existing communities attempting to become 55+.

My understanding of HUD/FHA/HOPA is that they do not confer any property rights. Instead, they are an agreement that if the community meets and maintains certain conditions that the government will not pursue age-discrimination complaints against that community.

This matter highlights one thing I have learned from this site: Buying into an unfinished development is risky because none of us know what will happen in the future.

A number of states have adopted common law that holds that covenants cannot be made more restrictive while others have held they can. I am unaware of any statutes or common law preventing owners from adopting less restrictive covenants, as is the case here.

My best guess is that the owners can amend their covenants to eliminate the 55+ restrictions. Since the original developer is long-gone, those who purchased expecting a perpetual 55+ community may have no recourse.

In response to the original question (is it legal for the Board to put this particular aspect up for a vote?), only if the covenants allow amendments to be made by a vote of the board. If the 55+ restrictions are stated in the covenants, then the covenants must be amended by whatever means are specified in the declaration. This typically requires at least 2/3 of the owners to agree. If the 55+ restrictions are set forth in some other document, such as the bylaws, I know of at least one court opinion that holds this to be an improper means of creating deed restrictions.

JudyW3,

Possibly you meant to write “reside” when you wrote “own”. Anyone of any age can OWN a home in a 55 or older community.

The restrictions refer to who can RESIDE in the community. What is important is the ages of the persons who occupy the Units or Homes.
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Here are some links:
This one takes you to the actual HOPA or Housing for Older Persons Act:

http://hud.gov/offices/fheo/library/hopa_final.pdf
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This is to an article I just found with a quick “search”:

http://www.condolawgroup.com/2013/07/12/community-associations-the-housing-for-older-persons-act-hopa/

And contains the following paragraph:

Under HOPA, such a community may prohibit residents under age 18, and may reserve its units for residents 55 or older, if the community satisfies three requirements. The housing must (1) have at least 80 percent of the occupied units occupied by at least one person who is 55 years of age or older; (2) publish and adhere to policies and procedures that demonstrate the intent to provide housing for older persons; and (3) comply with federal rules for verification of occupancy.
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Here is an article that discusses the 80/20 Rule:

http://www.floridacondohoalawblog.com/2010/04/articles/fair-housing/55-over-housing-what-is-the-8020-rule/
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And this is to the official HUD site written in “Question and Answer” form:
http://www.hud.gov/offices/fheo/library/hopa95.pdf

Here is a sampling:

Question 4
What are some examples of the types of policies and procedures that would demonstrate an intent to provide housing for persons 55 years of age or older?

Answer
Examples include:
a) the written rules, regulations, lease provisions, deed or other restrictions,

b) the actual practices of the owner/management of the housing facility/community used in the enforcement of the rules;

c) the kind of advertising used to attract prospective residents to the housing facility/community as well as the manner in which the facility/community is described to prospective residents;

d) the housing community's/facility's age verification procedures, and its ability to produce, in response to a familial status complaint, verification of required occupancy.

Question 14
What does the ratio or percentage of 80/20 portion of housing mean?

Answer
HOPA requires that at least 80 percent of the occupied units must be occupied by at least one person 55 or older. The remaining 20 percent of the units may be occupied by persons under 55, and the community/facility may still qualify for the exemption

Question 15
Is it lawful to advertise or market the 20 percent portion of the units not required to be occupied by at least one person 55 years of age or older to prospective tenants/purchasers under age 55 and to families with children?

Answer
Yes. However, the marketing must be done in a way that identifies the facility/community as housing intended for older persons. Advertising and marketing must not be inconsistent with the intent. Further, the facility/community needs to plan with care any attempt to sell or rent the entire 20 percent portion of the remaining units to incoming households under age 55, because it could risk losing the exemption if some occupants over 55 die, with surviving spouses or heirs who are under 55 years of age. Such planning should address notice to incoming households under the age of 55 regarding how the housing provider will proceed in the event that the 80% requirement is endangered.

Turn the question around. If I had a mortgaged home located in a 55+ community that decided to remove that restriction, would that mean I would not have to pay my mortgage?

For some reason, I do not think I need to bother my lender with that question.

I just gotta ask, though, do mortgages for homes in a 55+ community typically have a requirement that the association maintain that status? I was unaware of such a requirement but I have no first-hand experience with the subject.

As I mentioned in my initial question, 14 of the remaining undeveloped lots are owned by an investment group. What if it was disclosed that prior to the vote certain members met with this group and influenced them to vote a certain way. Could the Board discount all of the votes from those parties? Also, do you think lot owners who have no vested interest in our community other than the value of their lot(s), which by the way, has decreased dramatically since the recession, should be able to vote on issues that really only affect residents who live here?

Just putting that out there for conversation sake.

Thanks to everyone for your responses. They have been quite helpful.

Interesting responses! JohnC has given you some excellent advice, check with the town authorities. I live in a 55+ community and the developer did indeed enter into such an agreement with the town as a condition of development. To my knowledge that agreement can 't be broken. People need to realize that there are restrictions that trump anything in their Declaration or whatever you call them in your state.
Please keep us posted as to the outcome!