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HOPA OCCUPANCY INFO

Started by JohnB26 • 36 replies • 3192 views

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JohnB26 (South Carolina)
Posts: 1,569
Posted:
as per HOPA:

Question 22
Are there circumstances under which a 55 or older owner/tenant might be temporarily absent from a dwelling without affecting the exemption status of the community/dwelling?
Answer
Yes. For example, the 55 or older occupant may be on vacation, hospitalized, or absent for a season without affecting the exempt status of the community. The resident may, if he/she wishes, allow a younger relative or a house sitter under 55 years if age to live in the unit during this absence. In either event, the unit would be included in the calculation of the 80 percent occupancy requirement as long as the dwelling is not rented out, the owner/tenant returns on a periodic basis, and maintains legal and financial responsibility for the upkeep of the dwelling.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By JohnB26 on 05/21/2014 11:23 AM
as per HOPA:

Question 22
Are there circumstances under which a 55 or older owner/tenant might be temporarily absent from a dwelling without affecting the exemption status of the community/dwelling?
Answer
Yes. For example, the 55 or older occupant may be on vacation, hospitalized, or absent for a season without affecting the exempt status of the community. The resident may, if he/she wishes, allow a younger relative or a house sitter under 55 years if age to live in the unit during this absence. In either event, the unit would be included in the calculation of the 80 percent occupancy requirement as long as the dwelling is not rented out, the owner/tenant returns on a periodic basis, and maintains legal and financial responsibility for the upkeep of the dwelling.

John,

Hmmmmmmmm - interesting. Thanks for the post.
RayC4 (Virginia)
Posts: 173
Posted:
Quote:
Posted By BruceF1 on 05/21/2014 1:36 PM
Posted By JohnB26 on 05/21/2014 11:23 AM
as per HOPA:

Question 22
Are there circumstances under which a 55 or older owner/tenant might be temporarily absent from a dwelling without affecting the exemption status of the community/dwelling?
Answer
Yes. For example, the 55 or older occupant may be on vacation, hospitalized, or absent for a season without affecting the exempt status of the community. The resident may, if he/she wishes, allow a younger relative or a house sitter under 55 years if age to live in the unit during this absence. In either event, the unit would be included in the calculation of the 80 percent occupancy requirement as long as the dwelling is not rented out, the owner/tenant returns on a periodic basis, and maintains legal and financial responsibility for the upkeep of the dwelling.

John,

Hmmmmmmmm - interesting. Thanks for the post.

Bruce, I didn't see a post that generated the query here. But the underlined portion of 'Question 22' here (for emphasis?) is merely an incidental. The point made in the text is that, yes, "temporary" situations may cause the 55+ occupant to be absent for understandable reasons. But it is clear from the text that this is considered (by HUD) to be an abnormal situation, and cannot be used to 'defeat' the whole purpose of maintaining the 80/20 ratio. So for example, a young couple occupying the residence who have grandma visit once per quarter does not count in the "80%" category -- even if Grandma owns the place. It is only occupancy that 'counts.' Ownership does not.

Not understanding this can get folks (and HOAs) into hot water big time (i.e. legal disputes based on age discrimination or (alternatively) interference with a sale, etc.)
JohnB26 (South Carolina)
Posts: 1,569
Posted:
wrong wrong wrong

In either event, the unit would be included in the calculation of the 80 percent occupancy requirement as long as the dwelling is not rented out, the owner/tenant returns on a periodic basis, and maintains legal and financial responsibility for the upkeep of the dwelling.


as long as it is not a rental, grandma can visit on a regular periodic basis

as long as grandma pays the bills it DOES count as 55+ occupied
BonnieG1 (Nebraska)
Posts: 1,186
Posted:
Something that I have not considered is that the person paying the bills counts as the occupant of a unit. I will need to check further into this.
I would appreciate it if you could let me know where this information is found as we may need to use the information regarding the person paying the bills is the one considered residing in the unit. Is this a federal quideline or is it in some state statues?
HeleneN (Connecticut)
Posts: 84
Posted:
Bonnie

You will find it under Housing for Older Persons Act of 1995 (HOPA) I don't know if there have been any amendments to that Act since 1995.
We had a similar problem with qualified residents being away seasonally and allowing someone under 55 to occupy their unit. Since being away does not disqualify residents and they still continued to be financially responsible the board did not see the under 55 staying in the unit as a violation. We had a group of residents in an uproar about the boards stand on the matter and it probably cost some board members votes in ensuing elections.
We now have the influence of that group in the majority on the board. Need I say more? I expect any day to receive an edict that only certain model cars of an approved color can be parked in our driveways or they will be towed away.(just kidding) All kidding aside a unit owner just received a letter warning her to remove the mulch around her house or it will be vacuumed up at her expense. The reason being that it's not cedar! We are talking about free standing homes on deeded property!
JohnB26 (South Carolina)
Posts: 1,569
Posted:
!! THANK YOU HelenN !!
JohnB26 (South Carolina)
Posts: 1,569
Posted:
Bonnie:

actual HOPA act: http://www.hud.gov/offices/fheo/library/hopa_final.pdf

question and answer sheet from HUD: http://www.hud.gov/offices/fheo/library/hopa95.pdf

Welcome to world of ACTUAL FACT as opposed to: what I would like



John Bernabeu
RayC4 (Virginia)
Posts: 173
Posted:
Quote:
Posted By JohnB26 on 05/21/2014 7:25 PM

as long as it is not a rental, grandma can visit on a regular periodic basis

as long as grandma pays the bills it DOES count as 55+ occupied

So under this scenario, an 85 yr old 'absentee owner' allows her grandchild to reside in the residence rent-free. And you think that qualifies as a 55+ residence under Federal HOPA guidelines?

Think again.

All HUD/HOPA guidelines care about is who actually resides in the dwelling (i.e. occupancy). That is why portions of the guidelines referenced by JohnB and HeleneN include 'age verification' procedures. That represents a physical 'census' of the community -- they want to know who is RESIDING there, and whether the 80/20 percent OCCUPANT ratio is being maintained.

(Otherwise, why have age restrictions at all? Think about it.)
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By BonnieG1 on 05/21/2014 8:02 PM
Something that I have not considered is that the person paying the bills counts as the occupant of a unit. I will need to check further into this.
I would appreciate it if you could let me know where this information is found as we may need to use the information regarding the person paying the bills is the one considered residing in the unit. Is this a federal quideline or is it in some state statues?

Bonnie

My rich lady friend who live 500 miles way, pays all my bills including my HOD Dues (I wish)and I am the deeded owner of the home.

I am not nor do I play a lawyer.

I do not see how who pays the bills shows occupancy, ownership, rental, etc.

HeleneN (Connecticut)
Posts: 84
Posted:
Question 22

"Are there circumstances under which a 55 or older OWNER/TENANT might be temporarily absent from a dwelling without affecting the exemption status of the community/dwelling?"

Answer

"Yes, For example, the 55 or older occupant may be on vacation, hospitalized, or absent for a season without affecting the exempt status of the community. The resident may, if he/she wishes, allow a younger relative or a house sitter under 55 years of age live in the unit during this absence. In either event, the unit would be included in the calculation of the 80 percent occupancy requirement as long as the dwelling is not rented out, the owner/tenant returns on a periodic basis, and maintains legal and financial responsibility for the upkeep of the dwelling."

If your documents are stricter than what the law allows you probably would lose if anyone challenges you in a court of law. Also, JohnC, your rich benefactor probably doesn't have legal ownership of the house and doesn't return periodically. If she does one might say you are a kept man!

I'm waiting for the day when an "odd couple" moves into our community. This place will go berserk!
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Rayc4

Part of the original post by JimbB:

One owner's daughter is coming to live with her for a while, and has been told by the Board that guest can only stay 59 days? I understood that in a 55+ community as long as they are over 18 and reside with a 55 or older person that's it?

JohnB26 (South Carolina)
Posts: 1,569
Posted:
can y'all not read:

OWNER .... MUST PAY THE BILLS .... MUST OCCUPY ON A PERIODIC BASIS

ALL OF ABOVE MUST BE MET

the issue is the definition of: periodic basis

6 mo ON - 6 mo OFF qualifies (snowbird)

1 mo ON - 11 mo OFF qualifies as it is regular + periodic

1 day ON - 60 day OFF would be the grey area as it may be legit or ????

since it is a grey undefined area any restrictions become, prima facia, unenforceable except by lack of knowledge and intimidation

y'all don't like the HOPA '95 act which circumvents the Fair Housing Act ?

neither do I

let's petition Congress to repeal HOPA - never will happen as HOPA gets us geezers out of sight and keeps us happy in our private (and hidden from sight) sandboxes
PitA1
Posts: 222
Posted:
JohnB26 is now PitA1
PitA1
Posts: 222
Posted:
So under this scenario, an 85 yr old 'absentee owner' allows her grandchild to reside in the residence rent-free. And you think that qualifies as a 55+ residence under Federal HOPA guidelines?


I, personally, have no opinion / as per HOPA:

as long as the 'absentee owner' returns on a regular, periodic basis and is paying the bills ~ YES IT DOES QUALIFY ~

the fact that you don't like this does NOT change it

(formerly JohnB26)

RayC4 (Virginia)
Posts: 173
Posted:
Quote:
Posted By PitA1 on 05/22/2014 12:36 PM
So under this scenario, an 85 yr old 'absentee owner' allows her grandchild to reside in the residence rent-free. And you think that qualifies as a 55+ residence under Federal HOPA guidelines?


as long as the 'absentee owner' returns on a regular, periodic basis and is paying the bills ~ YES IT DOES QUALIFY ~

the fact that you don't like this does NOT change it


Not if the young couple are the ones actually residing in the unit. (Obviously that would not be fair to the other 55 yrs+ neighbors who intended to buy into the age-restricted situation.) Just read up on the Fed Guidelines.

As for "liking" or "not liking" HOPA? I'm not in an age-restricted community so why would I care? I feel the same about HOPA as I do about gravity. It's just there. But I do care about posting accurate information for those who may have reason to care.
TimB4 (Tennessee)
Posts: 21,048
Posted:
I think people are misunderstanding the issue that John, err PITA, is stating.

It's not who is actually paying the bill. It's who is legally responsible for paying the bills. In my opinion, this typically boils down to who's name is on the mortgage/deed and/or who's name is on the utility bills.

RayC4 (Virginia)
Posts: 173
Posted:
Quote:
Posted By TimB4 on 05/22/2014 7:44 PM
I think people are misunderstanding the issue that John, err PITA, is stating.


Tim, you are correct that that's the issue John is stating. Unfortunately it's the wrong issue. The core HOPA issue -- the only issue -- is who resides in the dwelling (and their ages of course). If someone resides in a dwelling, naturally they have to 'see that' the bills are paid (e.g. mortgage, rent, upkeep). But that doesn't mean they have to write the checks if, say, a rich uncle or even Santa is doing that for them.

Naturally if bills don't get paid, or the place is not 'kept up', they'll eventually be ousted. In that sense, they are responsible. But again, the HUD/HOPA folks don't care about that -- only whether they 'occupy' and how old they are.
PitA1
Posts: 222
Posted:
again, as per HUD:

In either event, the unit would be included in the calculation of the 80 percent occupancy requirement as long as the dwelling is not rented out, the owner/tenant returns on a periodic basis, and maintains legal and financial responsibility for the upkeep of the dwelling.


imo: whether or not OTHER persons ALSO reside is not material to the issue

ONE person over 55 must 'occupy' as defined by HOPA not the HOA
EllieD (Vermont)
Posts: 446
Posted:
For what it is worth I just pulled up a copy of the HOPA act: http://www.hud.gov/offices/fheo/library/hopa_final.pdf

I then searched using some of the words found in the Answer to Question 22. Among the words I looked for, from the Answer, were: maintains, legal, financial, upkeep. I found none of those words, nor similar, relating to “who is paying the bills”:

But I did find:

“Sec 100.305 80 percent occupancy.”
“(a) In order for a housing facility or community to qualify as housing for older persons under sec 100.304, at least 80 percent of its occupied units must be occupied by at least one person 55 years of age or older.

(b) For purposes of this subpart, occupied unit means:

(1) A dwelling unit that is actually occupied by one or more persons on the date that the exemption is claimed; or

(2) A temporarily vacant unit, if the primary occupant has resided in the unit during the past year and intends to return on a periodic basis.”

And I found:

“Example 3:”

“Snowbird City is a mobile home community in Texas with 100 units. Snowbird City complies with all other requirements of 55-or-older housing, but is uncertain of its compliance with the 80 percent occupancy rule.

Fifty out of the 100 units are occupied year round. Of these fifty units, 12 units are not occupied by at least one person 55 years of age or older. Of the remaining 50 units, 5 are unoccupied and offered for sale, and the remaining 45 are occupied by at least one person 55 years of age or older each winter on a routine and reoccurring basis.

If a complaint of familial status discrimination is filed in December, the community meets the 80 percent occupancy requirement because 83 out of the 95 occupied units (87 percent), are occupied by at least one person 55 years of age or older.

If the complaint is filed in July, Snowbird City still meets the requirement. Under Sec 100.305(b), a temporarily vacant unit is considered occupied by a person 55 years of age or older if:

(1) The primary occupant has resided in the unit during the past year; and

(2) The occupant intends to return on a periodic basis.”

And I found re leasing:

“A unit which is occupied, even if temporarily vacant while its residents are absent seasonally, on vacation, or hospitalized, for example, is still occupied by that resident.

If, on the other hand, a unit is leased by its owners during their absence, its current occupants, not its owners, are considered for purposes of the exemption.”
PitA1
Posts: 222
Posted:
DOH ~ AGAIN:

In either event, the unit would be included in the calculation of the 80 percent occupancy requirement as long as the dwelling is not rented out, the owner/tenant returns on a periodic basis, and maintains legal and financial responsibility for the upkeep of the dwelling.


EllieD (Vermont)
Posts: 446
Posted:
JohnB, you started by underling the last portion of Answer to Question 22 about “financial upkeep of the dwelling” - which was then picked up by BonnieG1, TimB4, and possibly others, thinking it was a requirement of HOPA.

As best as I can determine that requirement does not seem to be in HOPA. I could find nothing re financial upkeep in the Act proper or in the Background describing changes made, or in the Discussion of the Proposed Rule, or in the Appendix.

Which is the reason I posted.

Of course in searching I might has missed a reference, because it is unusual for published Question and Answers, to state something that cannot be traced back the “actual” document.
PitA1
Posts: 222
Posted:
Ellie,

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

Questions and Answers
Concerning the Final Rule Implementing
the Housing for Older Persons Act of 1995 (HOPA)

(page 10)

Question 22
Are there circumstances under which a 55 or older owner/tenant might be temporarily absent from a dwelling without affecting the exemption status of the community/dwelling?
Answer
Yes. For example, the 55 or older occupant may be on vacation, hospitalized, or absent for a season without affecting the exempt status of the community. The resident may, if he/she wishes, allow a younger relative or a house sitter under 55 years if age to live in the unit during this absence. In either event, the unit would be included in the calculation of the 80 percent occupancy requirement as long as the dwelling is not rented out, the owner/tenant returns on a periodic basis, and maintains legal and financial responsibility for the upkeep of the dwelling.

the above was 'copy and paste' 16:55 EDT 5/23/14

John B
EllieD (Vermont)
Posts: 446
Posted:
John B, yes your “copy and paste” is accurate.

But it was from the Document, HUD Internet Version, titled “Questions and Answers Concerning the Final Rule Implementing the Housing for Older Persons Act of 1995 (HOPA)”.

That document does NOT contain the actual wording of HOPA, just a summary.

The link to the “Actual” Act is: http://www.hud.gov/offices/fheo/library/hopa_final.pdf

This is a three (3) column “small print” PDF document (9 pages not including the cover page) that includes the actual wording of the Act, implementation, other commentary, and is dated Friday 2, 1999. It has a cover page that has “federal register” printed on it sideways, in very large letters. The appendix contains a number of “examples”, but not the “specific” Questions and Answers that are in the HUD “companion” Question and Answer Document.
BonnieG1 (Nebraska)
Posts: 1,186
Posted:
Quote:
Posted By n/a on 05/22/2014 7:22 AM
Bonnie:

actual HOPA act: http://www.hud.gov/offices/fheo/library/hopa_final.pdf

question and answer sheet from HUD: http://www.hud.gov/offices/fheo/library/hopa95.pdf

Welcome to world of ACTUAL FACT as opposed to: what I would like



John Bernabeu

I haven't actually studied this for myself yet. I wanted to print it but my computer is acting up. It crashes frequently. I am looking at new computers, comparing prices etc.
At this time my computer is not letting me print anything.

I do really want to study this for myself but I don't want to stare at the computer screen for an hour or more reading it.
PitA1
Posts: 222
Posted:


I wish y'all good luck when challenged in court

Y'all will need a lot.

The 'summery' is by the governmental agency tasked with the actual enforcement of the Act which is written in 'legalese'.

The Q&A is available in certified form for actual reference in a court of law. (upon written request to HUD)

The fact that it actually PREVENTS the Fascists from wielding full and absolute control is what has many 'up in arms'.

The definition of 'occupant' and 'occupying' is deliberately very very broad to prevent EXACTLY the abuse of power which started many many of these threads.

Be careful about your wishes re: rentals.

Two seniors move in together to split expenses.
One senior sells to her child/LLC with a life estate provision.
A senior's down on their luck family move in and pay expenses.
You 'charge expenses' for a room to a child/sibling to make them into a responsible person.
A 'snowbird' allows their family to live in home paying expenses.
etc.

W/O an actual lease, are these rentals ?

There is a vast difference between a COMMERCIAL or INVESTMENT rental and a rental of necessity ~ usually an actual LEASE with resulting tax consequences (no longer owner's primary residence) including IRS issues with income and mortgage deductions.

Be very very careful what you wish for - one day it may apply to you!

My own home is well protected by a powerful partnership:

~~~~~Mr. Smith, meet Mr. Wesson~~~~~

I am done with this issue which is becoming Torric Ka-Ka !
PitA1
Posts: 222
Posted:
.....I don't want to stare at the computer screen for an hour or more reading it.


sooooo ..... the Director can't be bothered to study an actual law for 1 hour

why does this not surprise me ?

perhaps she already KNOWS what she is too scared to document ?

...sorry for the 'bitterness', but W/T/F...
BonnieG1 (Nebraska)
Posts: 1,186
Posted:
Quote:
Posted By PitA1 on 05/23/2014 4:33 PM
.....I don't want to stare at the computer screen for an hour or more reading it.


sooooo ..... the Director can't be bothered to study an actual law for 1 hour

why does this not surprise me ?

perhaps she already KNOWS what she is too scared to document ?

...sorry for the 'bitterness', but W/T/F...

I have a few reasons for not wanting to stare at a computer screen for an hour. One is eye problems. I am very slowly going blind. The other is that my computer keeps crashing. I have spend hours studying our documents, studying state law, reading books related to condominiums. Reading info on Roebert's Rules of Order. If my printer were working with my computer, I would have no problem printing the information to read later. In fact I think I have read this info earlier. I know I have read a lot regarding the HOPA laaw. I just don't remember everything I have read. Also today I have other prorities.
I hope to get a new computer this week end that will help with some of the problem I have using a computer. (I know I can enlarge the font to make it easier to read.) Pita, I think you judge before you know all of the facts.

And also maybe I should have said "at this time" because I have some many other things that are a higher priority on my schedule.
PitA1
Posts: 222
Posted:
soooooo...............

...other priorities...

I will serve unless it interferes with my schedule.

Can't make the meeting, I have company.

My printer is broken.

But the pool is open NOW.

How am I supposed to know that?

QuickBooks? I can't use fancy software!

State law? What do you mean, we are PRIVATE.

etc.

RAH RAH SISS BOOM BAAH ~ HOPA ALL THE WAY

PitA1
Posts: 222
Posted:
Ellie,

From the Act itself:

(page 1, 1/4 down center column)

{QUOTE}
(C) Intended and operated for occupancy
by persons 55 years of age or older, and—
(i) At least 80 percent of the occupied units
are occupied by at least one person who is
55 years of age or older;
(ii) The housing facility or community
publishes and adheres to policies and
procedures that demonstrate the intent
required under this subparagraph; and
(iii) The housing facility or community
complies with rules issued by the Secretary
[of HUD] for verification of occupancy,
which shall—
(I) Provide for verification by reliable
surveys and affidavits; and
(II) Include examples of the types of
policies and procedures relevant to a
determination of compliance with the
requirement of clause (ii). Such surveys and
affidavits shall be admissible in
administrative and judicial proceedings for
the purposes of such verification.
{END QUOTE}

imo: this gives HUD the authority to interpret the Act and issue plain English guidelines such as the Q & A

however

some of us geezers can not see, can not remember, and do not agree with the rules
therefor
they must not exist



John Bernabeu, chief PitA
TimB4 (Tennessee)
Posts: 21,048
Posted:
John,

It's nice that your taking ownership of being a PIA

You should be aware that the moderators have posted in the posting rules the following request:

"Please also do not post the full name of any person.
PitA1
Posts: 222
Posted:
oops

I would never post another's full name.

I will stop posting mine.

BonnieG1 (Nebraska)
Posts: 1,186
Posted:
A few years ago the Vice President bawled me out for throwing away advertisement that advertised unit availability to persons 52 with a waiver from the Board.
I knew then, Because I had actually studied the HOPA law that we could not even advertise for anyone yonger than 55 to live in a unit.
It has been some time since I have actually studied this law not that I shouldn't take the time to review on a regular basis (my bad) but we have very little issue in our senior community with this. Just one problem owner and our lawyer is helping us with this.
We did have to reverse fines and remove a lien per our lawyers advise.
Our previous President slapped a lien on a unit when only $50.00 was due without informing the owner he could request a Board hearing. I was not informed when the lien was placed on the unit. The President and her husband were the only other Board members at that time (long story) and I go left out of some things.

LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By PitA1 on 05/23/2014 4:28 PM

I wish y'all good luck when challenged in court

Y'all will need a lot.

The 'summery' is by the governmental agency tasked with the actual enforcement of the Act which is written in 'legalese'.

The Q&A is available in certified form for actual reference in a court of law. (upon written request to HUD)


If one were to go to court on this issue, the statutes enacted by Congress will prevail over the opinion issued by an administrative agency attempting to interpret the law. The fact that it is certified means only that it is proof that the advice came from the agency but it is not proof that the opinion is correct. The certification also means that no one from the agency is likely to appear in court to testify in support of this opinion; the party who presents this to the court will be on his or her own to defend it. The court is not obligated to uphold the administrative agency's opinion.

PitA1
Posts: 222
Posted:
Larry,

the ACT itself gives HUD the authority to interpret:

{QUOTE}
(C) Intended and operated for occupancy
by persons 55 years of age or older, and—
(i) At least 80 percent of the occupied units
are occupied by at least one person who is
55 years of age or older;
(ii) The housing facility or community
publishes and adheres to policies and
procedures that demonstrate the intent
required under this subparagraph; and
(iii) The housing facility or community
complies with rules issued by the Secretary
[of HUD] for verification of occupancy,
which shall—
(I) Provide for verification by reliable
surveys and affidavits; and
(II) Include examples of the types of
policies and procedures relevant to a
determination of compliance with the
requirement of clause (ii). Such surveys and
affidavits shall be admissible in
administrative and judicial proceedings for
the purposes of such verification.
{END QUOTE}
LarryB13 (Arizona)
Posts: 4,099
Posted:
PITA,

The last word on interpretation will come from the courts. That's their job.

PitA1
Posts: 222
Posted:

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