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30 days to kick out wife

Started by KyleP • 48 replies • 1094 views

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KyleP (Florida)
Posts: 10
Posted:
I am retired military 49 years old with 80% disability. I purchased an RV lot in a 55 and up community Under the rule 80% must be over 55 and 20% under 55 allowed. They knew at the time that I'm married to an Asian women age 36 but 9 months later after buying a $70,000 lot, They Are telling me I have 30 days to have my wife move out because she's under the age of 40 in accordance with their HOA rules. Two Asian women under the age of 40 have received this notice within this community today, One of them has lived here for 3 years now. Is this legal? Please help, Any attorney recommendations or advice.
We are quiet don't bother anyone, are respectful to everyone that we meet and we maintain our property keeping it clean. In fact we help a lot of people in this community, them being older, We do a lot of yard work and house cleaning for those that ask us for help.
CathyA3 (Ohio)
Posts: 6,299
Posted:
It may be, or it may not be.

There are very strict rules that 55-and-above communities must obey in order to qualify for that designation, and these communities must comply with the requirements to the letter or they will lose the designation. Losing the designation is bad, because what the designation does is grant an exemption from Fair Housing laws based on age. Lose it and all of a sudden the community will be subject to very expensive litigation, which isn't good for anyone.

What you didn't say (but were maybe trying to imply) is that this is actually a racial thing. I have no way of knowing that without knowing the exact demographics of your community. And the 55-and-older exemption is not a get-out-of-jail free card as far as other kinds of Fair Housing violations go.

You're probably going to have to hire a lawyer who knows about this stuff. I suggest first doing some reading about Fair Housing laws and the 55-and-older exemption. This may help you get started:

https://fchr.myflorida.com/fchr55andolderhousing

DouglasK1 (Florida)
Posts: 2,046
Posted:
My recollection was that the over 55 rule just required one resident to be over 55. I reviewed Cathy's link and it includes this:
"At least 80% of the occupied units are occupied by at least one person 55 years of age or older. "

If you were over 55, her age would be irrelevant. Since you are also under 55, they should be asking you both to move out if needed to meet the 80% rule, not just her. I agree with Cathy that it would probably be good to consult with an attorney. I am not aware that your disability plays into this or not, but buying into a 55+ community when you still have over 5 years to be eligible seems like it could complicate things.
Escaped former treasurer and director of a self managed association.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By KyleP on 06/03/2021 6:22 AM
I am retired military 49 years old with 80% disability. I purchased an RV lot in a 55 and up community Under the rule 80% must be over 55 and 20% under 55 allowed. They knew at the time that I'm married to an Asian women age 36
-- What I say below reinforces CathyA3's points. I am adding detail based on my study of the situation. I am a layperson and not an attorney. But I am pretty well-versed in fair housing law, including case law.

-- What hard evidence do you have that they knew at the time that your wife is under age 55? Please be specific in describing this hard evidence.

-- Please quote exactly the HOA covenant that addresses age requirements.

-- Please quote exactly any rules the HOA Board has created that addresses age requirements.

-- Please be aware that under the law, and if other conditions are met concerning advertising and verifying the age of HOA residents, 55+ communities may lawfully require that all residents be 55+. This does include requiring spouses to be 55+. Whether your HOA can do this depends on (1) the HOA's covenants and rules; and (2) whether the HOA has been enforcing this rule uniformly, to all households in the HOA.

Quote:
but 9 months later after buying a $70,000 lot, They Are telling me I have 30 days to have my wife move out because she's under the age of 40 in accordance with their HOA rules.

Two Asian women under the age of 40 have received this notice within this community today, One of them has lived here for 3 years now. Is this legal?
-- First, do you know of other households in the HOA where one of the residents is 54 or younger and the HOA is not trying to evict the people who are 54 and younger?

-- Second, from a bit of experience, I expect the more time that goes by where the HOA does not enforce a covenant or rule, the better the odds are that the HOA cannot evict the person.

-- Be aware that, as long as one person in a household is 55+, then the household counts towards meeting the 80% requirement. If at least 80% of the HOA's households have at least one resident who is 55+, and HOA meets a few other requirements, the Fair Housing Act exempts the HOA from certain FHA familial status sections. However, the 80/20 does not mean a HOA cannot set a higher percentage than 80%. As I wrote above, HOA covenants that require all residents of all households to be 55+ are lawful, as long as the HOA complies with certain conditions concerning advertising and age verification.

-- Keep copies of all communications with the HOA. Do not delete any emails on your email server.

-- I do advise immediately making the following request, sent certified mail, return receipt requested:

Dear HOA Board,

I understand that the federal Fair Housing Act requires a 55+ age restricted HOA to comply with certain rules in the Code of Federal Regulations regarding verification of occupancy. Please see 42 U. S. C. 3607 (b) and 24 CFR 100.307. Pursuant to 24 CFR 100.307 (i), please provide a copy of the HOA's most recent occupancy survey.

Thank you,

name
address
email addie
phone

-- Consider reviewing 42 U. S. C. 3607 (b) and 24 CFR 100.307 at the following sites:
https://www.justice.gov/crt/fair-housing-act-2

https://www.govinfo.gov/content/pkg/CFR-2017-title24-vol1/xml/CFR-2017-title24-vol1-part100-subpartE.xml

-- If you can afford an attorney, hire one to see what he/she says. Google for "civil rights attorneys" and the name of your city.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By DouglasK1 on 06/03/2021 8:22 AM
If you were over 55, her age would be irrelevant.
For the archives: Not so. Depending on the covenants and rules and whether the HOA meets some other requirements, an age restricted 55+ HOA may very well have the legal right to require every single resident to be 55+ and in fact evict anyone, married or not, who is 54 and under.
KyleP (Florida)
Posts: 10
Posted:
1. The realty company and the management office share the same building. I have emails with the realtor discussing my wife prior to closing on the property. My wife and I were also renting a lot within this community prior to travelling for 6 months in the RV. During this 6 months of Rving is when we started the process at purchasing a property.

2. I have an email from the management company 4 days after closing on the property asking me to fill out the paperwork that they use for the age verification process and the occupants. Their own HOA Policies and procedures required that this paperwork be completed 10 days prior to closing. They also acknowledge my wife by saying best wishes to you and your new bride.

3. I have an email of me requesting A copy of the HOA rules and regulations. But somehow My signature is forged on their paperwork saying that I read and received the HOA rules 3 days prior to that email.

4. I asked them to print out the paperwork they used to approve me purchasing a lot And found that it has my wife's date of birth on it 4 days after closing on the property.

The HOA rules read as follows.
80% of the lot's/units in the resort shall be occupied by at least 1 person 55 years and older. 20% Are allowed under the age of 55 But no one under the age of 40.
I absolutely support enforcing HOA rules. I believe if they had followed their policies and procedures this could have all been avoided. I was misled into thinking that I was allowed to purchase this property and find out 9 months later They want my wife to leave.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By KyleP on 06/03/2021 9:11 AM
1. The realty company and the management office share the same building. I have emails with the realtor discussing my wife prior to closing on the property. My wife and I were also renting a lot within this community prior to travelling for 6 months in the RV. During this 6 months of Rving is when we started the process at purchasing a property.

2. I have an email from the management company 4 days after closing on the property asking me to fill out the paperwork that they use for the age verification process and the occupants. Their own HOA Policies and procedures required that this paperwork be completed 10 days prior to closing. They also acknowledge my wife by saying best wishes to you and your new bride.

3. I have an email of me requesting A copy of the HOA rules and regulations. But somehow My signature is forged on their paperwork saying that I read and received the HOA rules 3 days prior to that email.

4. I asked them to print out the paperwork they used to approve me purchasing a lot And found that it has my wife's date of birth on it 4 days after closing on the property.

The HOA rules read as follows.
80% of the lot's/units in the resort shall be occupied by at least 1 person 55 years and older. 20% Are allowed under the age of 55 But no one under the age of 40.
I absolutely support enforcing HOA rules. I believe if they had followed their policies and procedures this could have all been avoided. I was misled into thinking that I was allowed to purchase this property and find out 9 months later They want my wife to leave.

This is further confirmation that you should talk to a lawyer, especially if you believe your signature was forged. Note: if you began this process while you were RVing and did a lot over the internet, that signature may be the software's version of your electronic signature.

Having your wife's birth date on the paperwork is not surprising - any purchase agreement with two owners will have that. And 55+ communities have to verify ages of all residents periodically to maintain the designation, not just at the time of sale (people marry, divorce, die, etc.).
AugustinD
Posts: 3,698
Posted:
-- Emails with the realtor are most likely not relevant.

-- In my opinion, the following is very relevant and any attorney you hire will home in on it:
Quote:
Posted By KyleP on 06/03/2021 9:11 AM
2. I have an email from the management company 4 days after closing on the property asking me to fill out the paperwork that they use for the age verification process and the occupants. Their own HOA Policies and procedures required that this paperwork be completed 10 days prior to closing. They also acknowledge my wife by saying best wishes to you and your new bride.
.
.
.
4. I asked them to print out the paperwork they used to approve me purchasing a lot And found that it has my wife's date of birth on it 4 days after closing on the property.


The only part that troubles me is the part about no one under the age of 40 being allowed. Since you do not know the difference between a "rule" and a "covenant," it's hard to judge what the "contract" you have with the HOA requires. Nor can I tell if your HOA is subject to Florida Statute Chapter 720 (Florida's non-condo "HOA Statute"). If your HOA is subject to FS 720, then the HOA was supposed to disclose the covenants to you. Meaning a court might very well say that you had proper legal notice that no one under 40 is allowed, period. This is not in your favor.

You could speak to your realtor and get her/his opinion on the situation, homing in on the facts above.

You should make the request I proposed above.

In theory, a non-attorney like yourself could write a letter and possibly get some cooperation from the HOA board. But at this point, I am concerned about both the "under 40" restriction (which is in general lawful), and that this board and manager may be more crooked than most and mess with your documents. I advise hiring an attorney. I am sorry that this will cost you on the order of $1000 to $5000 just to start.
MaxB4
Posts: 3,513
Posted:
The Federal Fair Housing Act prohibits “denial of housing or real estate transactions based on race, color, religion, sex, national origin, handicap and familial status.” One notable exception: age.

I would hit them with the race card!
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By AugustinD on 06/03/2021 8:35 AM

... snip ...
First, do you know of other households in the HOA where one of the residents is 54 or younger and the HOA is not trying to evict the people who are 54 and younger?

... snip ...

I want to mention this one piece, because it illustrates the problems associations have when restrictions are based on percentages - ie., a certain percentage of non-compliance with a particular restriction is OK. We see the same thing with rental restrictions that limit by percentages.

I've always had a problem with them because owners' right to do whatever it is depends on timing. If you get in under the limit, good for you - if you wait and somebody else gets in under the limit, then tough noogies for you, you can't do the thing. Inequality is built it.

In this case, if the association is dealing with multiple instances of people wanting the exception, they have to decide who draws the short straw. They have a choice between doing that, possibly risking legal action - or they treat everybody equally and lose their 55+ designation, risking more legal action.

So just because someone else appears to have "gotten away with it" is not grounds for challenging the association's actions, the way it would be in other cases of selective enforcement. The legislation that created 55+ communities flat out requires selective enforcement, with loss of that designation as a penalty for non-compliance. I hate it. I guess the message is that if you're under the age of 55, you really should think twice about living in one of these communities.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By MaxB4 on 06/03/2021 9:51 AM
The Federal Fair Housing Act prohibits “denial of housing or real estate transactions based on race, color, religion, sex, national origin, handicap and familial status.” One notable exception: age.

I would hit them with the race card!

He could. But the community still has to comply with the age restriction. It's not optional unless they want to lose their designation, and as far as I know, the legislation that created these communities didn't say "you have to comply with this age thing unless you're a member of a different protected class". It would be interesting to see how the courts would sort this out.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By KyleP on 06/03/2021 9:11 AM

The HOA rules read as follows.
80% of the lot's/units in the resort shall be occupied by at least 1 person 55 years and older. 20% Are allowed under the age of 55 But no one under the age of 40.
On further thought, and for the archives more than anything because I agree KyleP needs an attorney to give him and his wife the best chances:

Per the Fair Housing Act's provisions for "housing for older persons" (e.g. 55+ communities), as long as at least 80% of a 55+ HOA's homes have one resident who is 55 or over and certain advertising and age verification procedures are followed, then the HOA is exempt from the FHA's provisions concerning anti-discrimination on the basis of familial status.

But in the OP's case, both of the home's residents are under 55. So the OP falls into the FHA's 20% or less category of folks under 55 being allowed in a 55+ community.

Within this 20% or less category of folks under 55, can the HOA specify a further age restriction, namely, no one under 40 allowed? Could the HOA even say, "Those households falling into the 20% under 55 category: No kids allowed"? I think not.

This is what I know: The federal Fair Housing Act does not expressly ban discrimination based on age. Nevertheless, it is definitely forbidden under the broader prohibition against discrimination on the basis of familial status.

I am backpedaling. For the first time since I started pondering this situation, I now think the OP has a viable Fair Housing Act complaint for discrimination on the basis of familial status. This HOA cannot ban people under 40 for homes falling into the aforementioned 20% category.

KyleP, bring this up to the attorney you hire. If you want to submit a fair housing complaint to HUD, all by yourself, keep it very, very narrow, focused on the legal points here, presented in layperson's terms. If you go off on tangents that are unrelated to a violation of FHA, HUD will dismiss your complaint within a couple of months.

If you want me to draft a Fair Housing complaint which you can submit online at the HUD site, email me at augustin1919[]gmail.com. I am offering because this is interesting and I have helped others with these complaints and finding attorneys for same. Granted, it is extraordinarily difficult finding an attorney for anything HOA/COA related these days, even if one walks in with $7,000 of cash as a retainer.

CathyA3, I realize you may be sitting there rolling your eyes on this one, and I maybe agree with a response: The guy needs an attorney, period. For now, I figure education is a good thing.

AugustinD
Posts: 3,698
Posted:
Quote:
Posted By MaxB4 on 06/03/2021 9:51 AM
The Federal Fair Housing Act prohibits “denial of housing or real estate transactions based on race, color, religion, sex, national origin, handicap and familial status.” One notable exception: age.

I would hit them with the race card!
Especially if the occupancy survey (which the FHA requires the HOA share with anyone who asks for it) shows the HOA targeting Asian Americans under 55 et cetera and no others.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By CathyA3 on 06/03/2021 10:00 AM
[snip] it illustrates the problems associations have when restrictions are based on percentages - ie., a certain percentage of non-compliance with a particular restriction is OK. We see the same thing with rental restrictions that limit by percentages.

I've always had a problem with them because owners' right to do whatever it is depends on timing. If you get in under the limit, good for you - if you wait and somebody else gets in under the limit, then tough noogies for you, you can't do the thing. Inequality is built it.

In this case, if the association is dealing with multiple instances of people wanting the exception, they have to decide who draws the short straw. They have a choice between doing that, possibly risking legal action - or they treat everybody equally and lose their 55+ designation, risking more legal action.
Ha. Good points. Seems like I have seen some case law involving the 80-20 rules for HOPA (Housing for Older Persons Act of 1995, amending the Fair Housing Act to some extent). The HOA here may very well be on shaky ground indeed, with neither the facts or the law being clearly on the HOA's side. This could translate to the HOA figuring out sooner rather than later that fighting KyleP and his wife and other similarly situated couples is not worth the high cost.

I continue to be sorry this may very well cost KyleP and his wife several thousand dollars in attorney fees.
LetA (Nevada)
Posts: 2,679
Posted:
I'm confused as to how any half way decent RE agent would sell a property to someone under age in an age qualified community, unless there is an exemption for retired disabled military vets in age qualified communities. Why is only the wife being asked to leave?

This is something unfortunately you need a lawyer for. Typically in age qualified communities only one member of the household needs to be 55 or older. Something is definitely hinky.
KyleP (Florida)
Posts: 10
Posted:
Thank you all for the replies and education. This is just so overwhelming and stressful. I just don't think this is going to go in our favor. I'm thinking perhaps we just need to give up and hook up the rv and move rather than spend all that money on attorney's and risk losing everything. I think the most neglect falls on the realtor who did not give our completely filled out paperwork to the HOA prior to us closing on the property. Now I'm stuck with a $70,000 property trying to make payments and paying to move around different rv parks. This sucks 22 years military service and I got screwed.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By KyleP on 06/03/2021 11:32 AM
Now I'm stuck with a $70,000 property trying to make payments and paying to move around different rv parks. This sucks 22 years military service and I got screwed.
The civilian world is rife with legal conflicts. I think the law is mostly on your side by far. I doubt you're screwed at all. Like the mere mortals who are not retired military, you just gotta get educated -- do the work -- on the main points here and not quit.

I think you really ought to make that totally free call to the realtor and rattle off the points made here, or just print out this thread and ask the realtor to review it. Since the manager and realtor share offices, the realtor might very well go to bat for you. Some realtors know covenant and Fair Housing law better than many attorneys.
KyleP (Florida)
Posts: 10
Posted:
Realtor knew what they were doing with holding information to the management side of the office allowing incompleted paperwork to go before the HOA board members to approve me purchasing a property and conveniently leaving my wife off the paperwork. The HOA attorney called me and said I might have a case against a realtor But I don't have a case against the HOA because they only approved what was on the paperwork and my wife was not mentioned on the paperwork.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By KyleP on 06/03/2021 1:16 PM
The HOA attorney called me and said I might have a case against a realtor But I don't have a case against the HOA because they only approved what was on the paperwork and my wife was not mentioned on the paperwork.
KyleP: The law requires the HOA attorney to advocate zealously for his client. This includes lying to his client's opponents. I am not kidding. So of course the HOA attorney told you that you have no case against the HOA.

You need to speak to an attorney that you pay or at least offer to pay.

You ought to take me up on my offer to prepare the quite short Fair Housing complaint that I tend to think this HOA deserves. The mighty cogs at the U. S. Department of Housing and Urban Development (HUD) do turn, and in six months, you might shut this HOA down in what look to me to be illegal practices. Costs you nothing but a little time here and there.

Or sure, just move. Many make this choice. I did.

AugustinD
Posts: 3,698
Posted:
Quote:
Posted By AugustinD on 06/03/2021 1:25 PM
The mighty cogs at the U. S. Department of Housing and Urban Development (HUD) do turn, and in six months, you might shut this HOA down
I mean "shut down this HOA's inappropriate/unlawful practices regarding fair housing."
TimB4 (Tennessee)
Posts: 21,059
Posted:
You don't need to hire an attorney.

I would contact the HOA, in writing, and inform them that:
1) you are over 55, hence in compliance with the Housing for Older Persons Act amending in 1995.
2) The individual they are requesting to be moved from the development is your wife and requesting that she not live with you in the development is a violation of the fair housing act.
3) If they continue to attempt to force the issue, you will file a complaint with HUD.

Note: The issue is familial status.

Here is a link:

https://www.hud.gov/program_offices/fair_housing_equal_opp/online-complaint
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By TimB4 on 06/03/2021 1:33 PM
You don't need to hire an attorney.

I would contact the HOA, in writing, and inform them that:
1) you are over 55, hence in compliance with the Housing for Older Persons Act amending in 1995.
-- The OP is 49. His wife is 36.

-- See the other posts on this.

-- I do think the OP has a viable FHA complaint. But I think the reasoning is not for the faint of heart layperson.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By TimB4 on 06/03/2021 1:33 PM
You don't need to hire an attorney.

I would contact the HOA, in writing, and inform them that:
1) you are over 55, hence in compliance with the Housing for Older Persons Act amending in 1995.
2) The individual they are requesting to be moved from the development is your wife and requesting that she not live with you in the development is a violation of the fair housing act.
3) If they continue to attempt to force the issue, you will file a complaint with HUD.

Note: The issue is familial status.

Here is a link:

https://www.hud.gov/program_offices/fair_housing_equal_opp/online-complaint

The OP is only 49 - that's the problem, no one in his house is 55+. And these communities re-verify this info periodically to maintain their 55+ designation - residents need to prove proof of age.

=
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By AugustinD on 06/03/2021 1:41 PM
Posted By TimB4 on 06/03/2021 1:33 PM
You don't need to hire an attorney.

I would contact the HOA, in writing, and inform them that:
1) you are over 55, hence in compliance with the Housing for Older Persons Act amending in 1995.
-- The OP is 49. His wife is 36.

-- See the other posts on this.

-- I do think the OP has a viable FHA complaint. But I think the reasoning is not for the faint of heart layperson.

I agree. Missed that point.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By AugustinD on 06/03/2021 10:10 AM

Within this 20% or less category of folks under 55, can the HOA specify a further age restriction, namely, no one under 40 allowed? Could the HOA even say, "Those households falling into the 20% under 55 category: No kids allowed"? I think not.

This is what I know: The federal Fair Housing Act does not expressly ban discrimination based on age. Nevertheless, it is definitely forbidden under the broader prohibition against discrimination on the basis of familial status.

I am backpedaling. For the first time since I started pondering this situation, I now think the OP has a viable Fair Housing Act complaint for discrimination on the basis of familial status. This HOA cannot ban people under 40 for homes falling into the aforementioned 20% category.
I am backpedaling again. I am seeing too much talk on legal web sites saying that, as long as the 55+age restricted HOA meets the 80% requirement, then the HOA is exempt from claims of unlawful discrimination on the basis of familial status (meaning age as well, by my reading). For example:

===
"With the requirements by the Federal HOPA being that at least 80 percent of all residents be over 55, that allows for up to 20 percent of the residents of the condo association or HOA to be under the 55 years of age restrictions. That is where the association documents come into play. An association can limit all people under 55 or can put in provisions in their documents that allow for such things as only allowing people over 21 to reside in the community... " --http://www.richardslawgroup.com/rlg/55-and-older-restrictions/
===

Question 17
If a housing facility or community meets the requirements of HOPA but
permits up to 20 percent of the units to be occupied by families with
children, may the facility/community impose different terms and
conditions of residency on those families with children who reside there?

Answer
Yes. If a housing community/facility qualifies under HOPA as housing for
older persons, the community/facility is exempt from the Act's prohibition
against discrimination on the basis of familial status. The housing
community/facility may restrict families with children from benefits of the
community, or otherwise treat family households differently than senior
households, as long as those actions do not violate any other state or local law.
However, the community/facility is not exempt from the provisions of the Act
that prohibit discrimination against any resident or potential resident on the
basis of race, color, religion, national origin, sex, or disability.
===
The Housing for Older Persons’ Act does not prohibit minors under 18 years of age from residing in or visiting age 55+ communities. Similarly, the Housing for Older Persons Act does not require a landlord to allow minors. Although the government encourages sensible and compassionate policies, landlords are free to set the minimum age for residents who are authorized to reside in their community provided that the landlord still requires 80% of the occupied homes to have at least one primary resident age 55 or older. Landlords therefore have great discretion to enact age requirements that best serve their community. -- https://www.warnerangle.com/articles/senior-housing.
...
In one case, an age 55+ community, which was governed by a homeowners association, required at least one permanent resident to be at least age 55 and a minimum age of 35 for any other residents of the same home. In other words, even though at least one resident had to be age 55 or older, the other residents could be as young as age 35. A husband and wife, who were both over age 55, sought the association’s permission to allow their disabled son, who was only 26 years old, to reside with them because of his disability and his parents’ need to care for him.

The homeowners association, relying on the minimum 35 year age restriction in its documents, refused to permit the residents’ 26 year old son to reside in the community. The parents then filed a discrimination lawsuit against the association. The trial court ruled in favor of the homeowners association, concluding that the age restriction was a legally authorized form of discrimination, because the home was located within a qualified age 55+ community. However, an Appellate Court reversed that decision and concluded that the association’s actions constituted a failure to reasonably accommodate the needs of the residents’ son. While the Court acknowledged the validity of the age restriction for the community, the Court concluded that the age restriction, in and of itself, did not authorize discrimination based on a disability.
-- https://www.warnerangle.com/articles/senior-housing
===
KyleP (Florida)
Posts: 10
Posted:
That's pretty much what I understand also from reading different websites. Federal law Applies to the rule of 80% being over the age of 55 and the 20% below 55 is at the discretion of the community.
If I have an attorney go to court against the HOA I more than likely will not win this case and not only have my attorney fees to deal with but the HOA attorney fees to deal with.
If I got an attorney involved I might only have a case against the realtor for mis information. Of course the realtor can always say well we didn't ask the age of my wife because only my name was on the deed. I would be fine with leaving this community if I could at least get the realtor Buy back my property along with compensation for the money that I spent already on this property.
Again thank you to those who have responded today I appreciate You're assistance, opinions and for educating me on this subject
LetA (Nevada)
Posts: 2,679
Posted:
The HOA is right, you may have a case against the RE Agent.. Any decent attorney that specializes in real estate just might take this on a contingency. Check with your state bar and legal aid. There are plenty of free legal aid to vets.. Did you get the mortgage on a VA loan? Perhaps call your VA loan servicer and tell them what happened.
There may be some recourses if this could be considered fraud and misleading.

Sounds like you had a bad RE agent that was just out to cash a commission check..
AugustinD
Posts: 3,698
Posted:
-- From sources outside this forum, this RV community appears to be subject to the Florida Condo Act. It is a condominium association (COA).

-- This COA/RV community appears to still be under Declarant control.

-- Florida statute 718 requires the Declarant to provide a copy of the Declaration (of covenants et cetera) to prospective buyers pursuant to a certain timeline. See FS 718.503http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0718/0718.html

-- It's hard for me to believe the Declarant did not provide the covenants to KyleP before KyleP closed. Below I will go on the assumption the Declarant did provide the Declaration to KyleP before KyleP's purchase was completed, and KyleP had a certain amount of time to back out of the purchase after receiving copy of the Declaration.

-- It appears the community is well-advertised as a "55+" community. I put "55+" in quotations, because as folks here know, this means the community is meeting the 80/20 yada requirements of the Fair Housing Act. Not everyone has to be 55, but 80% of the homes must have at least one person over the age of 55 living in the home.

-- I presume the Declaration says something about the 55+ rules; the 80/20 split; the minimum age of 40, and so on.

-- From experience with covenants, my opinion is that the burden was on KyleP to review, prior to purchase, the Declaration and ensure all residents of his prospective home met the Declaration's requirements.

-- The realtor (who does appear to be connected to the Declarant) perhaps should have done more, but I am not persuaded either the realtor or the condo association failed in its legal duty to disclose what ages were allowed.

-- To me, this leaves two Fair Housing questions.

-- First Fair Housing question: Is the COA selectively enforcing the covenant requiring all to be at least 40 years old? In particular, are there non-Asians under the age of 40 living in this COA that the COA is allowing to live there? Also, would the Asian-Americans living there for a few years be willing to join KyleP and his wife as, say, co-plaintiffs in a lawsuit? HUD will only listen to those who "have standing." KyleP lacks standing to speak for others who may feel they are being discriminated against. (The climate for Asian Americans is poor indeed right now. I do not want to discourage KyleP on this particular point. But I want to be factual. He and his wife are not allowed to file a complaint with a court or with HUD on behalf of others. These others have to come forward themselves. I think he knows this. But I am posting for the archives.)

-- Second Fair Housing question: KyleP is 80% disabled. Does allowing his under 40 wife to continue living with him represent an accommodation that the COA is required to provide under Fair Housing law? Maybe. Above I referenced some case law on the point. In the case law note how a young person, younger than the allowable age limit, ultimately was allowed to remain with his parents in a senior community, so as to "reasonably accommodate" the young person's disability. KyleP, is your wife's presence not only essential because, well, she is your beloved wife, but also because she helps you in dealing with life's challenges due to your disability? This may be worth exploring with an attorney. Which I think KyleP may be sick of hearing from me and others.

-- I am not looking for loopholes. I am trying to be fair.

-- Bottom line (at which I think KyleP has already arrived): It may not be worth fighting. It may be easier to just move.

-- Possible lesson: In the future, read the covenants carefully before buying.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By TimB4 on 06/03/2021 2:01 PM
Posted By AugustinD on 06/03/2021 1:41 PM
Posted By TimB4 on 06/03/2021 1:33 PM
You don't need to hire an attorney.

I would contact the HOA, in writing, and inform them that:
1) you are over 55, hence in compliance with the Housing for Older Persons Act amending in 1995.
-- The OP is 49. His wife is 36.

-- See the other posts on this.

-- I do think the OP has a viable FHA complaint. But I think the reasoning is not for the faint of heart layperson.


I agree. Missed that point.

Now that my brain is firing on all cylinders again... I just realized that, this being the case, having the wife move out does nothing to get the community under the 20% threshold - the home is still owned/occupied by someone under the age of 55 (I'm assuming that disabled veterans are treated like anyone else for purposes of Senior Housing exemption). That does support the idea of an Fair Housing complaint based on race.

At this point, Kyle needs to look at the possible consequences of going that route. These lawsuits can take a long time and vacuum up a lot of dollars. And one thing that often results is that the person who sued the HOA becomes the community pariah, even if the person was 100% justified in doing so. Moving may be the easiest, cheapest, and fastest solution.

KyleP (Florida)
Posts: 10
Posted:
I did contact the management office here in the community and asked them if I could have a copy of the most recent occupancy survey. I told them that I can write a letter requesting the information if they need me to. The office assistant said she would call me back, about 30 minutes later she told me you can't have a copy of the occupancy survey tell your attorney that he can request it. I thought under federal law that I could request this information.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By KyleP on 06/03/2021 5:41 PM
I did contact the management office here in the community and asked them if I could have a copy of the most recent occupancy survey. I told them that I can write a letter requesting the information if they need me to. The office assistant said she would call me back, about 30 minutes later she told me you can't have a copy of the occupancy survey tell your attorney that he can request it. I thought under federal law that I could request this information.
Her response is unacceptable and has me snarling (yeah yeah, as a total stranger, from afar; whatever). Here's the federal law:

24 CFR 100.307 (i) "A summary of occupancy surveys shall be available for inspection upon reasonable notice and request by any person."

The courts say "Shall" means SHALL. As in:

[Judge to COA Attorney] "Do it or this court will sanction you. Next case."

"any person" means me, you, a person from Iceland, our respective sisters... anyone who is a person.

If you are going to continue pursuing this, then send a certified letter, return receipt requested to this loser of a management company/Declarant, cc'ing the Board. Let them not respond. As needed, this could help any battle you undertake. They are harassing you. This office assistant crossed a line. If possible, get on record (record her; use email; et cetera) this office assistant's response. Stay polite and emotionless. The facts of this exchange speak loudly. Under the law, the COA needs to cough up the occupancy survey. It makes me a bit suspicious that it so far, will not.
MaxB4
Posts: 3,513
Posted:
Quote:
Posted By AugustinD on 06/03/2021 5:54 PM
Posted By KyleP on 06/03/2021 5:41 PM
I did contact the management office here in the community and asked them if I could have a copy of the most recent occupancy survey. I told them that I can write a letter requesting the information if they need me to. The office assistant said she would call me back, about 30 minutes later she told me you can't have a copy of the occupancy survey tell your attorney that he can request it. I thought under federal law that I could request this information.
Her response is unacceptable and has me snarling (yeah yeah, as a total stranger, from afar; whatever). Here's the federal law:

24 CFR 100.307 (i) "A summary of occupancy surveys shall be available for inspection upon reasonable notice and request by any person."

The courts say "Shall" means SHALL. As in:

[Judge to COA Attorney] "Do it or this court will sanction you. Next case."

"any person" means me, you, a person from Iceland, our respective sisters... anyone who is a person.

If you are going to continue pursuing this, then send a certified letter, return receipt requested to this loser of a management company/Declarant, cc'ing the Board. Let them not respond. As needed, this could help any battle you undertake. They are harassing you. This office assistant crossed a line. If possible, get on record (record her; use email; et cetera) this office assistant's response. Stay polite and emotionless. The facts of this exchange speak loudly. Under the law, the COA needs to cough up the occupancy survey. It makes me a bit suspicious that it so far, will not.

WOW, holy $hit. you're going to berate an office assistance because they don't know federal law. Where does it end.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By KyleP on 06/03/2021 5:41 PM
I did contact the management office here in the community and asked them if I could have a copy of the most recent occupancy survey. I told them that I can write a letter requesting the information if they need me to. The office assistant said she would call me back, about 30 minutes later she told me you can't have a copy of the occupancy survey tell your attorney that he can request it. I thought under federal law that I could request this information.

Kyle,

Put the request in writing, sent via certified mail.
Identify the federal statute that specifies you are allowed to review the survey.

Translation, start the paper trail.
KyleP (Florida)
Posts: 10
Posted:
Thanks Tim, I have the letter ready to send out this morning.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By MaxB4 on 06/03/2021 6:48 PM
Posted By AugustinD on 06/03/2021 5:54 PM
Posted By KyleP on 06/03/2021 5:41 PM
I did contact the management office here in the community and asked them if I could have a copy of the most recent occupancy survey. I told them that I can write a letter requesting the information if they need me to. The office assistant said she would call me back, about 30 minutes later she told me you can't have a copy of the occupancy survey tell your attorney that he can request it. I thought under federal law that I could request this information.
Her response is unacceptable and has me snarling (yeah yeah, as a total stranger, from afar; whatever). Here's the federal law:

24 CFR 100.307 (i) "A summary of occupancy surveys shall be available for inspection upon reasonable notice and request by any person."

The courts say "Shall" means SHALL. As in:

[Judge to COA Attorney] "Do it or this court will sanction you. Next case."

"any person" means me, you, a person from Iceland, our respective sisters... anyone who is a person.

If you are going to continue pursuing this, then send a certified letter, return receipt requested to this loser of a management company/Declarant, cc'ing the Board. Let them not respond. As needed, this could help any battle you undertake. They are harassing you. This office assistant crossed a line. If possible, get on record (record her; use email; et cetera) this office assistant's response. Stay polite and emotionless. The facts of this exchange speak loudly. Under the law, the COA needs to cough up the occupancy survey. It makes me a bit suspicious that it so far, will not.


WOW, holy $hit. you're going to berate an office assistance because they don't know federal law. Where does it end.

Then you'd be astonished at what even a part-time sales assistant at the bottom of the org chart who worked in model homes needed to know about 55+ communities. They're mine fields of potential missteps since you're dealing with Fair Housing requirements. (All of our marketing materials had to be vetted by corporate legal and we had to stay on script/no ad-libbing, for instance.)

So yeah, an office assistant should know this stuff - although in her defense she apparently asked someone else who gave her bad info, so maybe we should berate that person instead. However, both are presumably being paid and should understand their jobs a little better.

Also in the office people's defense, there may be whiff of lawsuits in the air, in which case it *may* make sense to have homeowners communicate through their lawyers. But who knows since we're getting this info second hand...
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By CathyA3 on 06/04/2021 4:43 AM
WOW, holy $hit. you're going to berate an office assistance because they don't know federal law. Where does it end.


Then you'd be astonished at what even a part-time sales assistant at the bottom of the org chart who worked in model homes needed to know about 55+ communities. They're mine fields of potential missteps since you're dealing with Fair Housing requirements.
Exactly. The Fair Housing Act requires the disclosure of occupancy surveys. It is a big deal. People in property sales, rental and management typically have extensive training in fair housing law.

As for a COA/HOA manager saying they will only communicate with a member's attorney: Unless the COA/HOA member has declared to the HOA/COA that attorney John Doe represents him/her on xyz issue, the HOA/COA should be communicating with the COA/HOA member as required by the covenants and law on xyz issue.
AugustinD
Posts: 3,698
Posted:
Re-post, correcting attributions:
Quote:
Posted By CathyA3 on 06/04/2021 4:43 AM
Posted By MaxB4 on 06/03/2021 6:48 PM
WOW, holy $hit. you're going to berate an office assistance because they don't know federal law. Where does it end.


Then you'd be astonished at what even a part-time sales assistant at the bottom of the org chart who worked in model homes needed to know about 55+ communities. They're mine fields of potential missteps since you're dealing with Fair Housing requirements.


Exactly. The Fair Housing Act requires the disclosure of occupancy surveys. It is a big deal. People in property sales, rental and management typically have extensive training in fair housing law.

As for a COA/HOA manager saying they will only communicate with a member's attorney: Unless the COA/HOA member has declared to the HOA/COA that attorney John Doe represents him/her on xyz issue, the HOA/COA should be communicating with the COA/HOA member about xyz issue as required by the covenants and law.
MaxB4
Posts: 3,513
Posted:
Quote:
Posted By AugustinD on 06/04/2021 7:39 AM
People in property sales, rental and management typically have extensive training in fair housing law.

For real?? Is this kinds like the same extensive training that owners take to become Board members, of course, after they thoroughly read all their governing documents.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By MaxB4 on 06/04/2021 8:03 AM
Posted By AugustinD on 06/04/2021 7:39 AM
People in property sales, rental and management typically have extensive training in fair housing law.


For real?? Is this kinds like the same extensive training that owners take to become Board members, of course, after they thoroughly read all their governing documents.

https://www.dummies.com/test-prep/real-estate-license/fair-housing-basics-for-the-real-estate-license-exam/

Certainly more training than board members get, unless the board members seek it out. Realtors have to pass a licensing exam, unlike board members. Of course there are realtors and then there are realtors. But any professional who can get sued for mistakes has an incentive to know their business.
MaxB4
Posts: 3,513
Posted:
Quote:
Posted By CathyA3 on 06/04/2021 8:10 AM
Posted By MaxB4 on 06/04/2021 8:03 AM
Posted By AugustinD on 06/04/2021 7:39 AM
People in property sales, rental and management typically have extensive training in fair housing law.


For real?? Is this kinds like the same extensive training that owners take to become Board members, of course, after they thoroughly read all their governing documents.


https://www.dummies.com/test-prep/real-estate-license/fair-housing-basics-for-the-real-estate-license-exam/

Certainly more training than board members get, unless the board members seek it out. Realtors have to pass a licensing exam, unlike board members. Of course there are realtors and then there are realtors. But any professional who can get sued for mistakes has an incentive to know their business.

I held a real estate license in California for many years, although I never used it, just wanted to say I passed the test. In a new development, I don't believe an office assistant is required to be licensed, the person selling the property, by all means.

But, my understanding is the office assistant works for the management company, who may or may not need to be licensed. I don't.
AugustinD
Posts: 3,698
Posted:
Regarding the occupancy survey for 55+ communities, this gem just fell in my lap, courtesy of a friend:

https://www.perkinslawpc.com/index.php/23-blog/368-re-verifying-occupancy-in-a-55-and-over-association
KyleP (Florida)
Posts: 10
Posted:
So interesting day as I'm ready to give up. I did send a request for the occupancy survey, certified mail this morning, Late in the afternoon the office manager for the HOA association called me up and said he had no idea what I'm asking for what is an occupancy survey? I explained to him he shall give a copy of the occupancy survey to any person who request it under federal law. It is to be conducted every 2 years in order to stay within federal regulation and remain a 55 plus community, From what a good friend explained to me
MaxB4
Posts: 3,513
Posted:
Quote:
Posted By AugustinD on 06/04/2021 2:35 PM
Regarding the occupancy survey for 55+ communities, this gem just fell in my lap, courtesy of a friend:

https://www.perkinslawpc.com/index.php/23-blog/368-re-verifying-occupancy-in-a-55-and-over-association

Here is a link to an actual form.

https://www.google.com/search?q=what+does+a+OCCUPANCY+survey+for+55%2B+look+like?&sxsrf=ALeKk00C3sIPyiaAc_jvMv96AHBO0iXUkw:1622852903989&tbm=isch&source=iu&ictx=1&fir=BNNYRaHgOr_GyM%252CMdoyi1Iv8tOirM%252C_&vet=1&usg=AI4_-kSHtYG_ce3B3ZrqLMB6Q5962cD0TA&sa=X&ved=2ahUKEwjjmPWWnv_wAhVV5uAKHb1uBx0Q9QF6BAgHEAE#imgrc=TSUiIS0lDyNMAM
AugustinD
Posts: 3,698
Posted:
Regarding the HOPA statute and the Fair Housing Act's requirement for reasonable accommodation of disabled people, when such accommodation arguably requires the presence of someone under certain age limits a 55+ community has set, see https://www.warnerangle.com/articles/senior-housing

An acquaintance kindly provided a citation for the 2002 Arizona appeals court ruling mentioned at the link above, where a disabled 26-year-old was allowed to reside with his parents in a 55+ community, even though the 55+ community had a prohibition on anyone under the age of 35: Canady v. Prescott Canyon Estate Homeowners Association, 204 Ariz. 91, 60 P.3d 231 (Ariz. Ct. App. 2002). See https://www.courtlistener.com/opinion/2576447/canady-v-prescott-canyon-estates-homeowners-association/?
BenA2 (Texas)
Posts: 1,273
Posted:
Quote:
Posted By CathyA3e]

The OP is only 49 - that's the problem, no one in his house is 55+. And these communities re-verify this info periodically to maintain their 55+ designation - residents need to prove proof of age.

=

I believe that under the law, a community can adopt rules that allow a disabled person to be treated as 55+. If that is the case, the OP qualifies as the 55+ resident and the wife's age is irrelevant. If they do not have a rule allowing the disabled person to qualify as 55+ then they were allowed to move in as part of the under 55 group. I can't imagine they can make someone move because the HOA made a mistake years ago.

This requires an attorney, in my opinion.
KyleP (Florida)
Posts: 10
Posted:
The rule in this community is 80% must be over the age of 55. 20% can be below the age of 55 but nobody younger than the age of 40. So as a 49 year old yes I am allowed to buy the property but my wife being 36 and them not Placeing her on any of the age verification paperwork. I was buying this property out of state, And it seems a realtor pretty much did what was necessary to make the sale. I received a notice 9 months later saying she must leave Since she is under the age of 40.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By BenA2 on 06/06/2021 6:27 PM
Posted By CathyA3e]

The OP is only 49 - that's the problem, no one in his house is 55+. And these communities re-verify this info periodically to maintain their 55+ designation - residents need to prove proof of age.

=


I believe that under the law, a community can adopt rules that allow a disabled person to be treated as 55+. If that is the case, the OP qualifies as the 55+ resident and the wife's age is irrelevant. If they do not have a rule allowing the disabled person to qualify as 55+ then they were allowed to move in as part of the under 55 group. I can't imagine they can make someone move because the HOA made a mistake years ago.

This requires an attorney, in my opinion.

This is something that OP should persue.
KyleP (Florida)
Posts: 10
Posted:
I have decided rather than take the risk of fighting a legal battle and risk losing all money on an attorney plus paying HOA's attorney fees to buy another property.
So 2 miles away I'm buying another property for my wife In an unrestricted age community. But I intend to keep my rv in the age restricted community. Can my wife visit everyday as long as she is not residing in this community?
She and I will spend our night's sleeping at our property in the non age restricted community but most days We will hang out at my RV or even the community pool in the age restricted community. She as my visitor.
MaxB4
Posts: 3,513
Posted:
Quote:
Posted By KyleP on 06/08/2021 7:59 PM
I have decided rather than take the risk of fighting a legal battle and risk losing all money on an attorney plus paying HOA's attorney fees to buy another property.
So 2 miles away I'm buying another property for my wife In an unrestricted age community. But I intend to keep my rv in the age restricted community. Can my wife visit everyday as long as she is not residing in this community?
She and I will spend our night's sleeping at our property in the non age restricted community but most days We will hang out at my RV or even the community pool in the age restricted community. She as my visitor.

I purchased a motor coach a couple of years ago and decided to buy three different properties in three different states, California, Michigan and Florida. We purchased recently in California, and purchased mid last year in Michigan. We had been looking in Florida and I have never seen so many restrictions, so we probably end up in either North Carolina or Georgia.

I would really review your docs to make sure it is kosher.

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