55+ limits

Started by DavidG45 • 27 replies • 682 views

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DavidG45 (Delaware)
Posts: 994

Posted:

Maybe this is a question that won't cause as much controversey.

I am the sole resident board member on a developer controlled 55+ community. One of our residents has their house on the market, and a couple slightly under age 55 wants to place an offer. The current resident is unsure if they are able to sell their home, and have reached out to me. I reached out to our property manager, and as usual they said they had no idea.

I am aware that up to 20% of homeowners can be under age 55. But who keeps track of that an enforces it?

MaxB4
Posts: 3,513

Posted:

My humblest apologizes, I am in California, but this is what the attorney who owns the website says. He also is legal counsel to many of these 55+ communities.

https://www.davis-stirling.com/HOME/Verifying-Age#axzz2eGFRGwBO

IMHO, the property manager for this type of property should know this, chapter and verse.

CathyA3 (Ohio)
Posts: 6,299

Posted:

https://www.hud.gov/program_offices/fair_housing_equal_opp/fair_housing_act_housing_older_persons

What these communities qualify for is an exemption from certain provisions of the Fair Housing laws.

It is the responsibility of the board to keep track of the demographic makeup of the residents of the community, and you must re-verify periodically (every two years, I think). The re-certification is important. Failure to complete and confirm the age status of each resident in the community could, if the threshold fails, impair the ongoing exemption for the 55 and over housing exemption (meaning that they would lose the right to be an age-restricted community).

The age limitation applies to the *residents* of the community, not just owners.

AugustinD
Posts: 3,698

Posted:

Federal law requires the HOA to either track it or risk losing eligibility for exemption from the FHA's prohibitions on xyz. See 42 U. S. C. 3607 (b) (2) (C) (iii) and 24 CFR 100.307.

42 U. S. C. 3607 (b)
... Nor does any provision in this subchapter regarding familial status apply with respect to housing for older persons.
...
As used in this section, “housing for older persons” means housing—
...
(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 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.

24 CFR 100.307 Verification of occupancy.
(a) In order for a housing facility or community to qualify as housing for persons 55 years of age or older, it must be able to produce, in response to a complaint filed under this title, verification of compliance with § 100.305 through reliable surveys and affidavits.
... [See rest at https://www.law.cornell.edu/cfr/text/24/100.307, checking for up-to-datedness]

24 CFR 100.305 - 80 percent occupancy.
(a) In order for a housing facility or community to qualify as housing for older persons under § 100.304, at least 80 percent of its occupied units must be occupied by at least one person 55 years of age or older.
[See rest at https://www.law.cornell.edu/cfr/text/24/100.305 ]

For case law and/or law firm's opinions on this, ask.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By MaxB4 on 09/07/2021 12:42 PM
My humblest apologizes, I am in California, but this is what the attorney who owns the website says. He also is legal counsel to many of these 55+ communities.

https://www.davis-stirling.com/HOME/Verifying-Age#axzz2eGFRGwBO

IMHO, the property manager for this type of property should know this, chapter and verse.

Yes, the property manager ought to not only know the exact wording in our documents, but ought to know the practical implementations of the age restrictions. Ours does not, which is why I am also in the process of trying to convince our developer to allow us to change property managers. But that's a different topic.

In the mean time, I have re-read the ammendment dealing with age restrictions, and it appears it is the Board to maintain the age balance, and must complete a comprehensive survey of all residents every two years. Given that I know enough of our homeowners to be sure we are nowhere near the 20% limit. But as our community is nearly four years old I believe we need to conduct a survey post haste.

Thanks for all of the above responses.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By CathyA3 on 09/07/2021 12:51 PM
https://www.hud.gov/program_offices/fair_housing_equal_opp/fair_housing_act_housing_older_persons

What these communities qualify for is an exemption from certain provisions of the Fair Housing laws.

It is the responsibility of the board to keep track of the demographic makeup of the residents of the community, and you must re-verify periodically (every two years, I think). The re-certification is important. Failure to complete and confirm the age status of each resident in the community could, if the threshold fails, impair the ongoing exemption for the 55 and over housing exemption (meaning that they would lose the right to be an age-restricted community).

The age limitation applies to the *residents* of the community, not just owners.

Thanks. A lot of this has become a lot clearer.

However, I do still question what the "policing" of this entails. Let's say we are exactly at 20%, and somebody sells a home to another person who is under the age of 55. Just to make it interesting, perhaps that person has young children - which also violates our minimum age restriction.

What happens then?

AugustinD
Posts: 3,698

Posted:

For the archives, regarding a HOA/COA that does not perform occupancy surveys every two years:

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

https://www.ghclaw.com/65C0C8/assets/files/News/DevNJ_EnsuringCompliance_JAN07.pdf

https://www.azcentral.com/videos/news/local/arizona/2018/08/24/can-neighborhoods-prohibit-children-moving-in/1057247002/

https://fchr.myflorida.com/fchr55andolderhousing (see especially the questions and answers section)

Balvage v. Ryderwood, U. S. Court of Appeals 9th Circuit, 2011, on achieving compliance with HOPA after the statutory transition period, https://www.justice.gov/sites/default/files/crt/legacy/2011/05/06/balvageopinion.pdf

Acknowlegement: Another hoatalk member has dealt with a HOA cheating on the occupancy surveys. She/he found some of the above links and discussion.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By DavidG45 on 09/07/2021 1:15 PM
... snip ...

Thanks. A lot of this has become a lot clearer.

However, I do still question what the "policing" of this entails. Let's say we are exactly at 20%, and somebody sells a home to another person who is under the age of 55. Just to make it interesting, perhaps that person has young children - which also violates our minimum age restriction.

What happens then?

If that happens, I recommend calling the association attorney since whatever happens can cause a commotion. There are some exceptions to the law, but the association has to provide for these exceptions ahead of time - you can't just wing it when you find a problem. The Fair Housing Act and the Housing for Older Persons Act can be unforgiving if you get things wrong.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Out of curiosity, when someone buys into a 55+ community do they have to provide some type of proof such as a license, or some other piece of documentation? If so, all it would take is a simple database or spreadsheet to track this. I guess my question is, why isn't this easy to do and maintain?

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By JohnT38 on 09/07/2021 2:41 PM
Out of curiosity, when someone buys into a 55+ community do they have to provide some type of proof such as a license, or some other piece of documentation? If so, all it would take is a simple database or spreadsheet to track this. I guess my question is, why isn't this easy to do and maintain?

The issues that arise are not when someone moves in, it is maintaining a list and doing the surveys after they move in. Updating divorces, deaths, new family members AFTER moving in.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnT38 on 09/07/2021 2:41 PM
Out of curiosity, when someone buys into a 55+ community do they have to provide some type of proof such as a license, or some other piece of documentation?

Yes. From the above CFR citation:

Any of the following documents are considered reliable documentation of the age of the occupants of the housing facility or community:

(1) Driver's license;

(2) Birth certificate;

(3) Passport;

(4) Immigration card;

(5) Military identification;

(6) Any other state, local, national, or international official documents containing a birth date of comparable reliability; or

(7) A certification in a lease, application, affidavit, or other document signed by any member of the household age 18 or older asserting that at least one person in the unit is 55 years of age or older.

(e) A facility or community shall consider any one of the forms of verification identified above as adequate for verification of age, provided that it contains specific information about current age or date of birth.

Quote:
If so, all it would take is a simple database or spreadsheet to track this. I guess my question is, why isn't this easy to do and maintain?
The net has some age verification/occupancy survey forms that some HOAs/COAs apparently use. They seem to be good examples.

If units are turning over at a rapid pace, I can see this getting tricky. Never mind the occupancy survey. The instant an ostensibly 55+ community fails to meet the 80% occupancy requirements, it is supposed to lose its FHA HOPA exception and can be sued, possibly successfully, for keeping out people under 55 (familial status discrimination?).

Theoretically a HOA manager, per direction of the board, will be screening potential buyers carefully, and possibly turning away those who are under 55.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AugustinD on 09/07/2021 2:57 PM
The net has some age verification/occupancy survey forms that some HOAs/COAs apparently use.

The interested reader may wish to see https://www.villagebungalows.com/hopa and attachments.

(Thanks again to a certain HOATalk member for ferreting these out from the net.)

📎 Attachments (2):

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📄197154610571.pdf(68 KB)

📄197154612154.pdf(89 KB)

BenA2 (Texas)
Posts: 1,273

Posted:

I am not that familiar with the subject but I will say you need a new management company. At minimum, their answer should be, "I don't know but I'll find out."

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By BenA2 on 09/07/2021 5:26 PM
I am not that familiar with the subject but I will say you need a new management company. At minimum, their answer should be, "I don't know but I'll find out."

They're under developer controller still.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By MaxB4 on 09/07/2021 5:51 PM
Posted By BenA2 on 09/07/2021 5:26 PM
I am not that familiar with the subject but I will say you need a new management company. At minimum, their answer should be, "I don't know but I'll find out."

They're under developer controller still.

And that excuses the manager's lack of knowledge and unwillingness to help? Maybe I'm misinformed about what a manager does.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By BenA2 on 09/07/2021 5:54 PM
Posted By MaxB4 on 09/07/2021 5:51 PM

Posted By BenA2 on 09/07/2021 5:26 PM
I am not that familiar with the subject but I will say you need a new management company. At minimum, their answer should be, "I don't know but I'll find out."

They're under developer controller still.

And that excuses the manager's lack of knowledge and unwillingness to help? Maybe I'm misinformed about what a manager does.

Unbelievable!!!!!

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

And that excuses the manager's lack of knowledge and unwillingness to help? Maybe I'm misinformed about what a manager does.

Not really, but it does make it a lot harder for the homeowners to do anything about it.

Escaped former treasurer and director of a self managed association.

MaxB4
Posts: 3,513

Posted:

Ben,

If you had been paying attention, the OP is the only resident Board member on a DEVELOPER controlled community. What chance in hell do you think he alone will make that change?

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

And that excuses the manager's lack of knowledge and unwillingness to help? Maybe I'm misinformed about what a manager does.

I worked part-time for the developer/builder at a nearby 55+ community while it was under developer control and afterwards when the homeowners had taken control but we still were selling homes and maintained a model there.

All of our marketing materials had to go through corporate to make sure they complied with the law, and those of us who worked there had to understand what we could and could not say (basically no ad libbing, refer to the printed materials). The community had its own website with all of this info, and the HOA employed a full-time social director/clubhouse manager who also knew the laws and could respond appropriately to questions.

As far as buying into the community goes, you can't buy property without some kind of proof of identity, so verifying age at the time of sale isn't a problem. It's what happens afterwards that can be an issue.

(In general, I've observed that original owners in a new community are a slightly different breed and that the personality of a community changes to some extent as the community ages. For one thing, the original buyers typically go through a single point of contact, receive a consistent message and tend to be better informed. This is lost once the resales start, and it's lost faster in communities with a lot of turnover - eg. non-age-restricted condo communities that attract first time buyers. The older buyers I talked to generally said something like "they're carrying me out of here feet first" - they intended to stay put as long as possible, and only left due to the need for continuing care or death.)

PatJ1 (North Carolina)
Posts: 568

Posted:

Reading topic out of interest, along with many others on this wonderful forum.

The Davis-Sterling website states that:

***Anyone can buy into a senior community but not everyone can reside in one.***

https://www.davis-stirling.com/HOME/Verifying-Age#axzz2eGFRGwBO

Am I reading this wrong? Or does this mean that the age verification needs to be for "residents" rather than "owners"?

Owner = name on deed
Resident = person occupying the residence

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By PatJ1 on 09/08/2021 5:23 AM
Reading topic out of interest, along with many others on this wonderful forum.

The Davis-Sterling website states that:

***Anyone can buy into a senior community but not everyone can reside in one.***

https://www.davis-stirling.com/HOME/Verifying-Age#axzz2eGFRGwBO

Am I reading this wrong? Or does this mean that the age verification needs to be for "residents" rather than "owners"?

Owner = name on deed
Resident = person occupying the residence

Yes, it applies to residents, including tenants and children under the age of 18.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

I am under the impression that anyone can purchase a property in an age qualified community. Whether you can live in it is another question. At some point you have to show your ID to someone, The RE agent, The developers sales agent, someone has to see the purchasers ID. Is it possible the developer is hard up to sell and get the properties turned over that they will sell to anyone that can fog a mirror and has the green stamps to buy? Someone should have the responsibility to inform the purchaser that this is an age qualified community. I think showing your ID would come up at the title office at the close of escrow.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By MaxB4 on 09/07/2021 7:04 PM
Ben,

If you had been paying attention, the OP is the only resident Board member on a DEVELOPER controlled community. What chance in hell do you think he alone will make that change?

I was merely commenting that the manager is not doing their job. Whether or not the OP has the ability to make changes does not change my opinion.

Max, this is not personal. You always seem to be on the attack. Life is too short to be so angry. Lighten up dude.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By LetA on 09/08/2021 2:43 PM
Is it possible the developer is hard up to sell and get the properties turned over that they will sell to anyone that can fog a mirror and has the green stamps to buy?

I agree it is possible. It's maybe even likely, given that we all know that when a developer's lips are moving, he/she is lying. But based on my reading of how HUD and the courts deal with these HOPA communities, I also feel not monitoring the percentage of homes qualifying as over 55+ would be incredibly foolish.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By LetA on 09/08/2021 2:43 PM
Posted By JohnT38 on 09/07/2021 2:41 PM
Out of curiosity, when someone buys into a 55+ community do they have to provide some type of proof such as a license, or some other piece of documentation? If so, all it would take is a simple database or spreadsheet to track this. I guess my question is, why isn't this easy to do and maintain?

Note that this is not an original sale; which are easy to track and control as they are all going through the Developer and the single home builder in our community. This is an original homeowner who has put their house on the market. I'm not sure at what point somebody is able to interject into this process to make sure the new owners don't throw off the 80/20 percentages.

At this point it appears the best bet is to take regular surveys to insure we are not close to the limit. If we ever get close (hopefully never) we will need to get aggressive about monitoring homes that are on the market and making sure the listing agent and resident are aware of the restrictions.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 09/08/2021 4:13 PM

At this point it appears the best bet is to take regular surveys to insure we are not close to the limit. If we ever get close (hopefully never) we will need to get aggressive about monitoring homes that are on the market and making sure the listing agent and resident are aware of the restrictions.

I think it's time to consult an attorney about best practices. In particular, the likely statutorily required, pre-purchase HOA disclosure may have to say more about age restrictions.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 09/08/2021 4:21 PM
Posted By DavidG45 on 09/08/2021 4:13 PM

At this point it appears the best bet is to take regular surveys to insure we are not close to the limit. If we ever get close (hopefully never) we will need to get aggressive about monitoring homes that are on the market and making sure the listing agent and resident are aware of the restrictions.

I think it's time to consult an attorney about best practices. In particular, the likely statutorily required, pre-purchase HOA disclosure may have to say more about age restrictions.

Good call, particularly about the disclosure.

MarshallT (New York)
Posts: 414

Posted:

Since this is a controlled community, it is up to the board or manager to keep track of all residents and owners, and their ages, in the association. If there is no record of this, it's time to get this information formally documented. I'd review the contract to see if the PM is obliged to track and update owner/resident data.

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