Association Exceptions

Started by RichA3 • 7 replies • 371 views

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RichA3 (Arizona)
Posts: 48

Posted:

Can a COA/HOA make exceptions to an age-restricted retirement community rule in unusual/unfortunate circumstances?
Please check out this tragic news story...
azfamily.com/news/attorney:weighs-in-on-prescott-hoa-s-decision-to:force/article_f907fe00-380e-11ea-9632-6b8f788a9c55.html
If I was on the Board I would approve this exception...cannot think of a more deserving compassionate thing to do. Don't believe it could ever be used as a precedent. And I have heard of the 80/20-thing before.
Rich

RichA3 (Arizona)
Posts: 48

Posted:

And isn't that what a Board is for...to not only enforce rules but to allow reasonable exceptions to them?!

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By RichA3 on 01/16/2020 4:41 PM
And isn't that what a Board is for...to not only enforce rules but to allow reasonable exceptions to them?!

The Declaration of Covenants is a contract. If the Declaration does not give the Board authority to make exceptions to xyz, then with some caveats, it's true members could sue the HOA for not enforcing the covenants.

I would like to see the citation attorney Dessaules suggests exists for this 80% rule. Maybe it exists. Or maybe Dessaules is confusing some Sun City HOA covenants with general rules of law.

Where do I stand? If Dessaules is blowing hot air, then I suggest the board run some town hall meetings, take the membership's pulse, and then ask the membership to vote on an amendment to the Declaration. Let the membership take the heat (or not).

SheliaH (Indiana)
Posts: 6,964

Posted:

Personally, I'd vote to approve it, but we don't know the history of this community with this issue. It may be others pushed the limit (or ignored it altogether) and now the Board has to be more strict.

I did some Googling (I'm beginning to act like AugustinD!) and found this:

The Housing for Older Persons Act of 1995 (HOPA), a federal law, provides exemptions to family status non-discrimination if a retirement community meets either of the following conditions:

• All the residents are age 62 or older.

• At least 80 percent of the occupied units include one resident age 55 or older and the community shows an intent to provide housing for those 55 and up.

Once the retirement community meets these requirements, it is free to create its own age restrictions, in compliance with state laws. These restrictions can be more or less strict than the HOPA requirements.

Unfortunately, age-restricted communities may find this happening more often because more grandparents have to take custody of their grandkids because the children are unsuited to be parents due to substance abuse or other issues and so it's either stay with the grandparents or go into foster care.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

SheliaH (Indiana)
Posts: 6,964

Posted:

For more information on HOPA, visit https://www.hud.gov/sites/documents/DOC_7769.PDF

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

AugustinD
Posts: 5,144

Posted:

I am betting Attorney Dessaules got his idea about 80% yada from HUD rules on age-restricted communities. This was cited in an article about the above situation: https://www.hud.gov/sites/documents/DOC_7769.PDF
"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."

My take: If a HOA restricted by its covenants to folks 55+ one day finds that 21% of its units do not have at least one person 55 or older living in them, yet the HOA refuses to let a 30 year old person buy into the HOA, then the HOA is not exempt from Fair Housing law regarding age/familial status and can be sued for unlawful discrimination.

If this HOA's Declaration says all residents must be 19 or older, then I do not think Dessaules has the law right in this instance.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Rich,

I heard of the story and also lived in Prescott for awhile (I know the town well).

What is allowed by HOPA, as was pointed out, is 20%.
However, the deed restrictions (covenants) may have a stricter requirement. If it does, then the covenants must be complied with until they are amended.

Since the Association does not have their governing documents online (at least, none I could find), one really can't answer that. This would include the attorney who said an exception could be made. No one other then those who have access to the covenants can make an informed comment on exception ability.

Hope this helps,

Tim

JohnC46 (South Carolina)
Posts: 14,265

Posted:

There was a similar case concerning Sun City Hilton Head (Bluffton SC) where the adults were notified the youngster could not stay. The couple agreed to move and the BOD agreed to close their eyes for a period of time so they could find a place. I believe there were letters back and forth between attorneys but it never went to court.

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