Special Assessments towards part of a community

I live in a community that currently has about 500 homes, with 150 remaining in the plan. A portion of our community (defined by a list of lot numbers) is a 55+ community as defined by the Housing for Older Persons Act. At full build-out there will be about 200 55+ homes, and about 450 "all ages" homes.

The 55+ section of our community has an additional age restriction, that disallows any full-time resident under the age of 19. The age restriction comes with a few exceptions, which are based on FHA laws; such as if a family member becomes primary caregiver for a child due to a death in the family, etc.

We have a current situation where a family moved in with a young boy. Upon being given a violation notice, they responded through their attorney that they would like a waiver of our age restriction in their case.

Without getting into the specifics, our attorney has advised us that if we go to court it could become expensive. That said, I am certain 90% of our 55+ residents would be willing to fork-over money in order to protect our age restrictions. However, I am also certain that 90% of our non-55+ residents would not want to spend money on a court case that they would view as of no consequence to them.

This is a lot of background to my question, which is whether or not the board may impose a Special Assessment against just the specific lots in the 55+ section, for purposes of defending 55+ age restrictions. The wording of our Special Assessment bylaws is listed below.

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Bylaws regarding special assessments below. Note "Legacy" refers to the 55+ side. Limited Common Elements refers to the clubhouse and pool on the 55+ side:

In addition to the annual assessments authorized by this Article, the
Corporation may levy, in any assessment year, a special assessment or special assessments
applicable to that year only for such purposes as the Executive Board may deem appropriate,
including, without limitation, for purposes of funding, in whole or in part, the cost of any
construction, reconstruction, repair or replacement of any capital improvement located upon the
Common Elements and all fixtures and personal property related thereto, and to meet unforeseen
or special expenditures as well as any budget deficit; provided, however, that special
assessments for such costs related to the Limited Common Elements may only be levied against
the Legacy Owners. Any such assessment shall require ratification by Lot Owners under the
procedures described in Article V, Section 1(b) of these Bylaws, except that if the Executive
Board by unanimous vote determines that any special assessment is required because of
conditions which, if not corrected, could constitute an Emergency or reasonably result in a threat
to the health or safety of the Lot Owners or a significant risk of damage to the Common
Elements, then such special assessment may be approved by the Executive Board without the
foregoing vote of the Lot Owners and may be effective immediately if (i) notice of the
emergency assessment is promptly provide to all Lot Owners and (ii) the Executive Board
spends the funds paid on account of the emergency assessment solely for the purposes described
in the Executive Board vote.

Before getting into the special assessment issue, I'd start by finding out what the circumstances were regarding the child. This could be a matter of bad timing - maybe the buyers took custody as the closing was taking place or shortly thereafter. If they can prove that, I'd be inclined to grant the exemption, but if they claimed they didn't know the rules, I have to say the board may have no choice but to enforce the rule.

Regarding a special assessment for part of the community, it's one thing if there was major damage to that area, such as a tornado, but to defend a lawsuit under these circumstances would likely leave a bad taste in my mouth because these people had to know what the rules were before they bought. You may think 90% of your homeowners would be ok with a special assessment like this and you may be right, but I think you should see if you can resolve this first before bringing this to the homeowners. That could get really nasty

Well, I did not want to get into specifics because I did not want to distract from my primary question. However, since my question has been answered I will get into it.

Our age restriction in question deals specifically with children under the age of 19 not being allowed to reside in a home more than 90 days a year (so, for instance, grandparents can have their children all summer.) In this particular case the new family knew about about the age restriction, but chose to ignore it. They claim both real estate agents told them it would not be a problem. Their child, it turns out, is on the autism spectrum. So they have asked for a "reasonable accommodation" to our age restriction per FHA law.

Now, my understanding of "reasonable accommodations" has always revolved around requesting exceptions to rules in order to allow a ramp to their porch, a wider driveway to accommodate an accessible van, automatic doors on the clubhouse, etc. I have never heard of anything such as "your age restrictions don't apply to families with a handicapped individual in the household." So I'm not sure if our attorney is being way to risk averse, or if the law actually is on their side.

But I do know they did not act in good faith - they knew they were in violation when they were negotiating the sale and have even bragged a bit to other residents about how they pulled one over on "the HOA." They seem to think "the HOA" is some faceless entity without realize the HOA is actually the neighbors to whom they are bragging! But our attorney seems to suggest none of that may matter if they file suit.

It is frustrating.

If the HOA prefers to not enforce the covenant (by way of a waiver), and if even one person in the 55+ section lawyers up, then I think the HOA should consider reversing its position. Why? Because if the HOA is going to be sued regardless of which position it takes, then it may as well be on the side with the better chances.

For the archives:

By my layperson's study, a HOA that meets the requirements of the HOPA section of the Fair Housing Act may indeed lawfully refuse to allow people under 55, even if the person is disabled. In other words, if a HOA's covenants say no one under age 55 is allowed, then this age restriction applies even to those who are disabled and under age 55. In other words: For an age-restricted community that meets the requirements of HOPA, it appears that throwing out the entire under age restriction, so that a disabled person, who is younger than the age restriction, may live in the HOA, is not a "reasonable accommodation."

I would recommend a board in this situation to go to an attorney who is Fair Housing specialized. Why? Because the HOPA section of the Fair Housing Act is there to protect the right of the elderly to live in age-restricted housing.

Of some note, AFAIC:
The 1995 HOPA section allowing age-restricted, senior housing started as a companion section, some years before, to the 1988 section of the FHA prohibiting discrimination on the basis of familial status. Congress wanted the elderly to have protections just like families with children would have protections.

People at the OP's HOA's 55+ section recently paid good money to live in a 55+ community. Federal statutes respect their position.

That isn’t the case. It is theoretically possible, but it hasn’t happened. Grandkids will stay for a few days at a very small number of homes. Nobody has ever pushed the 90 day limit, and certainly until this family moved in we did not have school buses driving through our neighborhood.

It seems odd to think of our age restriction was more restrictive (perhaps allowing underage children 20 days instead of 90) it would be easier to enforce.

My non-lawyer but somewhat-experienced-dealing-with-55+-communities opinion:

* The age limits and other requirements are strict, and failure to adhere to them can result in losing the 55+ designation.

* A "reasonable accommodation" is something that is given to a resident who is there lawfully and allows the person full enjoyment of their home. I doubt that an accommodation can be used to skirt age requirements. That's not an "accommodation", that's a "waiver" of a provision of your CC&Rs. I think most experienced folks on this site will say that this is something a board does not have the authority to grant - it would be an unlawful amendment of your CC&Rs.

* The fact that the minor in question is autistic is muddying the waters.

* If "accommodations" of this sort were required, then that would amount to an end run around the requirements for the 55+ exemption and would make it difficult for many of these communities to maintain their status. I doubt that this is what the law intended.

* Lawyer up, because I think you'll probably have trouble with these folks since they acted deliberately and not out of ignorance or last-minute life events. Preserve any evidence you have that they knew what they were doing.

Are you sure you want to be on the board?

Vis-à-vis a restriction that under 19-year-olds are never allowed to stay overnight in a unit, I think the actual restriction (90 days maximum stay) is harder to enforce.

Good one. I think this is legally powerful. I think this is one of the main reasons, if not thee main reason, why many sites say that the Fair Housing Act says that a housing community seeking to stay qualified for the HOPA exemption may lawfully prohibit someone who is disabled and younger than 55 from being a resident.

Is there anything--a breakdown-- in your CC&Rs, David, about what components or services, etc., the legacy Owners pay for that the other Owners do not? In other words, is there anything that states that if a component or service is used solely by the Legacy homes, that entity pays to use it? Is there anything in the covenants or Bylaws about what kinds of matters the legacy owners may vote on?

Is there anything like the above in your Bylaws, perhaps in the section of the article preceding the section that you cited?

I'm also thinking about this from your Bylaws: "In addition to the annual assessments authorized by this Article, the Corporation may levy... a special assessment or special assessments ...for such purposes as the Executive Board may deem appropriate, including, without limitation, for purposes of funding the cost of any ....unforeseen or special expenditures..."

It goes on to say: "...provided, however, that special assessments for such costs related to the Limited Common Elements may only be levied against the Legacy Owners." Could that be interpreted to mean the limited common elements & their maintenance services and their reserve account are the sole items where a special assessment can be levied against the Legacy owners?

If the covenants, which we have not seen on this topic, and the Bylaws preclude special assessing the Legacy Owners for anything except the limited common areas, would those owners theoretically be able to vote to be billed to pursue legal action against the owners with the child?