change HOA CC&Rs to 55+ only

There are restricted 55 + HOA's out there. I would venture to say most in Florida. (Joke!). You should be able to change this by ammending the CC&R's and possibly by-laws (if exist) accordingly. Just follow the majority vote rule of ammending the rules and file them properly. I would definetely invest in a lawyer familiar with corporate/contractual law before preceeding. This is a giant step and limits many sellers. Not everyone likes the idea that they can only sell their property to a certain age group limiting their possible buyers in the long run. You also have children that may inherit the property from their family that aren't 55. That situation adds another complication that would need further investigating.

I would think this would be a case where you need 100% approval. This is a major change affecting not only the home's deed and perhaps value, but also the entire lifestyle of the community. I don't think 67% or 75% or even 87% of the owners should be able to make such a drastic change affecting all homeowners.
To paraphrase what is often said here (to those opposed to living in an HOA): If you want to live in a 55+ community, there are plenty already out there to choose from. Harold

Thanks, all for the input.

This is a messy one. The vote was completed November 2005. Now no one can location the document in the county recorder's records. No one can produce the document number and a records search fails to show any document properly recorded. So perhaps it was not ever recorded, despite all HOA Board members believing and being told repeatedly by their well paid pro management company that it had been voted on and then recorded.

No one questions the vote. The vote was at that time a majority of 51% which was required. But then local law states it must be available in the county recorder's records. This is such a mess that one of the board members is going into the professional management company's office tomorrow to try to locate the document as recorded and find out why it is not in the public record.

Now there are new issues. If the vote is done but the recording delayed, is there a legal implication of it becoming legally effective so long after the vote?

#1 post was done prior to meeting with the 4 board members yesterday. Turns out this thing is very complex, and at that time I didn't have all the information I have now. I searched the county recorder's office records. So have 2 title companies now. So has another unit owner. All 4 of us cannot find any record of a 55+ restriction being recorded. Everyone had previously believed it was recorded over a year ago. The fact is, what we believed does not match what is on record in publicly recorded documents. So it seems that what has been operationally in effect is, actually, not legally enforceable because this amendment may not have been recorded.

I am also trying to find out about whether a 100% vote would be required now if we started all over again. We all agree that the cut off date for such a restriction would have been met met if the amendment had been recorded shortly after the time when the vote was completed. I have no idea how to find out about this detail. The local law, meaning our state law does not specify any details about a vote for this age restriction, other than that it must be recorded as an amendment to the CC&Rs before becoming effective.

So then I realized 55+ communities are a type of age discrimination. That stuff is governed by fair housing law (as the exception to familial status). Meaning that my research shows that the fair housing laws have an exception to them with regards to familial status - Congress completely backed up the idea that adults have the right to live in a community without children. So "housing for older persons" is the HOPA federal law that governs. That's easy when you have a newly built community being sold off as an "active adult community" or something like that. I live in Las Vegas and Pulte/Del Webb have built and sold out two very successful subdivisions here (Sun City Summerlin and Sun City Anthem). The community I own in tried to convert to such a community , 55+ restriction, but now we have this issue.

This arose as an issue because I had a buyer for my home, over 55. Her agent asked me to provide the usual CC&Rs for any buyer to read. It was provided by the HOA through their management company but included nothing about 55 age restrictions. There was an ambiguity as a result, about whether this community is, or is not age restricted. That buyer (who wanted an age 55+ only home) got spooked and backed out. Now I have buyer #2 who is under age 55 and his agent wants to know if the age restricted amendment is, or is not recorded in the county recorder's office. This is a completely reasonable question. He and I believe it was not recorded, as a result of research.

As a result of this ambiguity the board had an emergency meeting late yesterday to address my issue. They told me they believed it was recorded over a year ago until this issue surfaced. Now they are convinced they do not know 100% if the document is, or is not recorded. If it is, it is apparently secret or hidden or somehow not properly indexed as no title company can locate it. If it is not recorded no one can understand why.

They are supposed to let me know today if they learn if it is, or is not recorded. My position is that if it recorded, and legally in effect, is then a title company doing the CC&Rs search should be able to locate it. If it is not recorded then my buyer #2 should be allowed to buy and live there. If it is recorded, the exact text of the restriction should be provided so potential buyers can read the text of the amendment.

Now I have an agent calling me with buyer #3, and she is over 55 but also wants to read the amendment. I don't want escrow #3 to blow up over the same ambiguity.

I am completely stalled and have no idea what to do next but wait and see what the board tells me later. What I want to find out now though is if there was a federal law that changed so that fair housing law now mandates, somehow, documentation about the residents actual age in a community like ours (no one keeps track as far as I know). Also I want to know if this community is not actually 55+ now (very possible) then whether a 100% vote would be required now, or not, if we had to start over again.

Yep well apparently my home is the first one who has had buyers who have made this issue surface.

The question right now is whether it is recorded. the management company says it was, but the title company says it is not. There is conflicting information. The treasurer of the HOA will inevstigate today to see what the truth is. It either IS or IS NOT and that will not be ambiguous after today's research. I've never heard of this kind of ambiguity before.

So that's the first research to do.

good point. I don't know where to read about what the federal guidlines for 55+ only are. Can anyone point me to a website for guidlines to run this type of community?

How so Harold? If someone buys a house and then amend the documents later aren't you in fact doing the same thing? If anything they might be able to go after the homeowner for not disclosing it if it could have affected the purchase and they weren't told. But then they have to prove the homeowner withheld that information.

Harold, all of your points are valid IMO. That is why it is best to file immediately. Do you know of any time limit requirement for filing? However, I am not aware of a time limit for filing. I do think under your senario the buyer would win if it were taken to court.

When a property is sold prior to filing the amendment I think the vote of the seller is no longer a valid approval. Also, once filed, I think there is a 1 year time limit for disputing the validity of the amendment in Colorado. So the buyer could probably get the court to terminate the amendment if necessary.

I also agree that just because the HOA voted to approve it, that it doesn't necessarily make it a "legal" amendment.

For example, in our CC&Rs, we state that the homes here are only for single family. Not so coincidentally, the ZONING for this area is also "single family, residential."

So, the HOAs that set up for seniors only, it would seem to me, have to have that ZONING for the development approved at the DEVELOPMENT stage when the developer records his plans.

If the community wants to change that later, it would require not only a CC&R change, but a ZONING change as well.

As an aside, are there no minutes from the meeting where the change was voted on? It would seem to me that even though you couldn't find if the change had been recorded, you could at least find the meeting details, include the vote, the wording of the change, etc.

If they have "misplaced" all that information as well, I don't quite know what to think about the board!

Jean, with all the speculation, and the questions, is it or isn't it...this could go on for as long as you want it to without ever coming to the truth.

IMO, you really need to seek counsel from an HOA attorney, for him to do the investigation, and to draw up the legal papers necessary.
To file an amendment of this nature should not be left to speculation or to the unprofessional, or further down the road you will revisit the same scenario again.

Bite the bullet, go forward with legal counsel. It may be that you will be advised to treat all as 'new', conduct the vote now, and ask for each resident's signature as a vote for an amendment to a 55-community 'from this date forward...'

The most glaring difference between an 'over-55' community and another community is the absence of 'young children' as residents.
Once (and if) the vote carries and prior to legally filing the Declaration with the state/county offices, you may want to seriously consider verbiage to cover:

1. Property intended for use as 'housing for older persons'...defined in the Fair Housing Amendment Act of 1988...
2. Specific percentage of the units must be occupied as the personal residence of at least one (1) person who as of the date of initial occupancy is 55 yrs. of age or older...
- this clause would then cover those who already reside who are not 55 as well as cover future buyers
3. Further to general age restrictions, occupancy of units shall be restricted to 'permitted occupants'...
- persons who are spouses, siblings or domestic partners residing with the person of qualifying age....
- persons above shall continue to be a permitted occupant after the death of his/her spouse, sibling or domestic partner...
- persons who are the child of a permitted occupant provided they are (19?) yrs or older
- temporary residency of guests (not age restricted) for a period not to exceed 120 days in any calendar year prior to approval of the Assn. (this may apply to college-students, children, grandchildren....)

Again, this is not a simple 'let's change to a 55 community...', and that's it and done. There are many considerations which the Board/residents need to address now to avoid future problem situations. A good attorney will assist you.

Good Luck in your efforts! Keep us posted.

Jean - There you go! You're not a 55+ overlay after all. And they verified the need for 100% approval and not effective until filed. I wonder why Roger says they can file any time?
Good luck selling your home since that cloud is lifted. It is fantastic that you've had three offers in this slow market - or aren't Las Vegas home sales slow? Harold