Fair Housing vs Homeowner's rights question

DavidG45 (Delaware)
Posts: 994

Posted:

I might have brought this up in an earlier thread, but I cannot find it now. Here is our situation:

Our community includes a subset of lots that are identified as a 55+ community per HOPA. Our governing documents includes an age restriction forbidding residents under the age of 19 within those lots. Several months ago a family moved in with a sixteen year old child. We issued an violation notice to the family, and they lawyered up. There attorney mentioned that the child has a mental disability, and that federal fair housing laws require us to grant them a temporary Reasonable Accommodation waiver of our age restriction for three years, until the child is nineteen. They further threatened a lawsuit if the waiver was not granted.

We are under developer control (until next Monday) and the developer delayed making any decision for several weeks, during which time word got out about the waiver request. The homeowner in violation then had their attorney request that a decision be delayed until our new board is elected (again, that will happen next Monday) because apparently they like their chances better with the new board.

Meanwhile, other residents in the 55+ section are furious over the fact that the homeowner has been allowed to remain here for months, and that the board has been asked for a waiver. They have made it known that if the waiver is granted they will file suit against the board failing to enforce our covenants.

So the new board will have to make a decision, and will likely be sued whichever decision they make. I am curious which lawsuit would have the most chance of success? It seems to me that the Reasonable Accommodation for a disability does not apply here, because their disability has nothing to do with the age restriction. It's not like a case where they need to build a ramp for a wheelchair, and waiving some architectural guidelines are needed for them to build the ramp. Their argument seems to be that any particular rules we have must be waived because they have a disabled resident.

I personally think the responsible thing for the board is to make its decision based on minimizing the chances of a successful suit.

Thoughts?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I am confused. What gives the HOA the right to foreclose on anything but unpaid dues? How is this a violation that gives the HOA the right to 'kick out". How does that actually work? I thought 55 + is not 100 percent.

Former HOA President

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By MelissaP1 on 05/13/2022 7:06 AM
I am confused. What gives the HOA the right to foreclose on anything but unpaid dues? How is this a violation that gives the HOA the right to 'kick out". How does that actually work? I thought 55 + is not 100 percent.

Yes. You are confused. I am hoping to hear from people knowledgeable on the topic.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Good luck. It was a question as how this works as described sounds illegal and wrong. Does not take an expert to figure that out. Can you define how one kicks an owner out?

Former HOA President

MichaelT21 (Arkansas)
Posts: 501

Posted:

David,

For our community, there are a lot of things that I feel I'm skilled at, including meeting with vendors, identifying landscaping that needs to be done, simple maintenance, and the like. And there are certain things that I know I'm not skilled at, such as legal questions involving the Fair Housing Act.

In our community, when people start going down legal paths, I simply send the issue to our association attorney to have them review and look into it and provide legal opinions to our association. Then we can make our decision based on sound legal advice. I would suggest the same for you.

One comment: Their attorney is not providing legal advice to you, they are taking a position that benefits their client. I think that their statement that you need to provide a 3-year waiver for this family based on the mental health of the child is complete hocus pocus, but I am not experienced in legal matters.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By MichaelT21 on 05/13/2022 7:23 AM
David,

For our community, there are a lot of things that I feel I'm skilled at, including meeting with vendors, identifying landscaping that needs to be done, simple maintenance, and the like. And there are certain things that I know I'm not skilled at, such as legal questions involving the Fair Housing Act.

In our community, when people start going down legal paths, I simply send the issue to our association attorney to have them review and look into it and provide legal opinions to our association. Then we can make our decision based on sound legal advice. I would suggest the same for you.

One comment: Their attorney is not providing legal advice to you, they are taking a position that benefits their client. I think that their statement that you need to provide a 3-year waiver for this family based on the mental health of the child is complete hocus pocus, but I am not experienced in legal matters.

Thanks. That was my initial thought, as well. However, for whatever reason up to this point our attorney has not provided an opinion on the matter, and kind of tap dances around any questions I post. I feel at some point we may need to consider hiring a fair housing specialist. In the mean time I thought someone here might have been through something similar.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 05/13/2022 6:35 AM

Our community includes a subset of lots that are identified as a 55+ community per HOPA. Our governing documents includes an age restriction forbidding residents under the age of 19 within those lots. Several months ago a family moved in with a sixteen year old child. We issued an violation notice to the family, and they lawyered up. There attorney mentioned that the child has a mental disability, and that federal fair housing laws require us to grant them a temporary Reasonable Accommodation waiver of our age restriction for three years, until the child is nineteen. They further threatened a lawsuit if the waiver was not granted.
...
I am curious which lawsuit would have the most chance of success? It seems to me that the Reasonable Accommodation for a disability does not apply here, because their disability has nothing to do with the age restriction. It's not like a case where they need to build a ramp for a wheelchair, and waiving some architectural guidelines are needed for them to build the ramp. Their argument seems to be that any particular rules we have must be waived because they have a disabled resident.

I personally think the responsible thing for the board is to make its decision based on minimizing the chances of a successful suit.

The April 2022 thread that spoke of this appears at https://www.hoatalk.com/Search/ForumSearch/tabid/87/forumid/1/postid/324877/view/topic/Default.aspx

I know the next board will speak with counsel. I realize you are preparing as best you can for this meeting. My thoughts:

Keep in mind that the family's attorney is a prostitute for the family. He or she will say virtually anything for money, including that 2 + 2 = 5. The attorney is trying to find every legal angle possible (and will bill a mint for this effort as well). The attorney has come up with a "temporary reasonable accommodation" until the child ages and so qualifies under the restrictions. Is he/she clever? No. This is just what he/she pulled out of his/her hat as something that, sure, it would be fun to test in the courts. Why not, the attorney things? All this litigation will help him or her build his summer home in Rehoboth Beach.

But you and I are no prostitutes. We're volunteers. We are seeking the "truth" here as best we can, tempered by wisdom, said wisdom being based in the reality of the American "justice" system.

By my reading the courts have said what you say: the Housing for Older Persons Act (HOPA) exemption means that communities that meet the requirements of HOPA have no legal obligation to accommodate anyone, disabled or not, under 55+.

Earlier CathyA3 argued this:

Quote:

Posted By CathyA3 on 04/23/2022 4:52 AM
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.

I think the seasoned veterans here agree with you that weighing the costs of litigation against the chances of victory against the price of just agreeing to this family's demands is important.

Fact: The HOA could be sued by either side here. Which side is more likely to prevail in court? By my reading, your argument is more likely to prevail. It may take an appeals court to find this. In other words, the litigation in the trial court and an appeals court may cost your HOA a lot of money.

Even if there were not a side (opposed to accommodating this family) ready to sue, I think the price, to the HOA, of agreeing to this family's demands is exorbitant. As CathyA3 indicates, caving to the family's demands undoes the structure of HOPA communities like yours.

At some point soon do check:

-- what the provisions are for attorney fees, pursuant to the covenants and state statute.

-- whether the insurer will pay for an attorney to defend the HOA. The family is going to make a claim of "We are being discriminated against on the basis of disability!" Does the insurance policy cover complaints of unlawful discrimination?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MichaelT21 on 05/13/2022 7:23 AM

One comment: Their attorney is not providing legal advice to you, they are taking a position that benefits their client. I think that their statement that you need to provide a 3-year waiver for this family based on the mental health of the child is complete hocus pocus

Quote:

Posted By AugustinD on 05/13/2022 7:45 AM
This is just what he/she pulled out of his/her hat as something that, sure, it would be fun to test in the courts.

And I submitted my post before I saw MichaelT21's post.

GMTA

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I still like to know the legal instrument a HOA would have to force an owner out for such a violation? It would not be foreclosure unless did not pay dues. Otherwise I do not know of any legal way to kick out an owner for such violation of not being 55+.

Former HOA President

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 05/13/2022 7:45 AM

Posted By DavidG45 on 05/13/2022 6:35 AM

Our community includes a subset of lots that are identified as a 55+ community per HOPA. Our governing documents includes an age restriction forbidding residents under the age of 19 within those lots. Several months ago a family moved in with a sixteen year old child. We issued an violation notice to the family, and they lawyered up. There attorney mentioned that the child has a mental disability, and that federal fair housing laws require us to grant them a temporary Reasonable Accommodation waiver of our age restriction for three years, until the child is nineteen. They further threatened a lawsuit if the waiver was not granted.
...
I am curious which lawsuit would have the most chance of success? It seems to me that the Reasonable Accommodation for a disability does not apply here, because their disability has nothing to do with the age restriction. It's not like a case where they need to build a ramp for a wheelchair, and waiving some architectural guidelines are needed for them to build the ramp. Their argument seems to be that any particular rules we have must be waived because they have a disabled resident.

I personally think the responsible thing for the board is to make its decision based on minimizing the chances of a successful suit.

The April 2022 thread that spoke of this appears at https://www.hoatalk.com/Search/ForumSearch/tabid/87/forumid/1/postid/324877/view/topic/Default.aspx

I know the next board will speak with counsel. I realize you are preparing as best you can for this meeting. My thoughts:

Keep in mind that the family's attorney is a prostitute for the family. He or she will say virtually anything for money, including that 2 + 2 = 5. The attorney is trying to find every legal angle possible (and will bill a mint for this effort as well). The attorney has come up with a "temporary reasonable accommodation" until the child ages and so qualifies under the restrictions. Is he/she clever? No. This is just what he/she pulled out of his/her hat as something that, sure, it would be fun to test in the courts. Why not, the attorney things? All this litigation will help him or her build his summer home in Rehoboth Beach.

But you and I are no prostitutes. We're volunteers. We are seeking the "truth" here as best we can, tempered by wisdom, said wisdom being based in the reality of the American "justice" system.

By my reading the courts have said what you say: the Housing for Older Persons Act (HOPA) exemption means that communities that meet the requirements of HOPA have no legal obligation to accommodate anyone, disabled or not, under 55+.

Earlier CathyA3 argued this:

Quote:

Posted By CathyA3 on 04/23/2022 4:52 AM
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.

I think the seasoned veterans here agree with you that weighing the costs of litigation against the chances of victory against the price of just agreeing to this family's demands is important.

Fact: The HOA could be sued by either side here. Which side is more likely to prevail in court? By my reading, your argument is more likely to prevail. It may take an appeals court to find this. In other words, the litigation in the trial court and an appeals court may cost your HOA a lot of money.

Even if there were not a side (opposed to accommodating this family) ready to sue, I think the price, to the HOA, of agreeing to this family's demands is exorbitant. As CathyA3 indicates, caving to the family's demands undoes the structure of HOPA communities like yours.

At some point soon do check:

-- what the provisions are for attorney fees, pursuant to the covenants and state statute.

-- whether the insurer will pay for an attorney to defend the HOA. The family is going to make a claim of "We are being discriminated against on the basis of disability!" Does the insurance policy cover complaints of unlawful discrimination?

Thanks for finding the thread!

Good thoughts about checking into our insurance and documents regarding what the HOA can pay for. It's an odd situation because if the 55+ residents sue for failure to enforce, they are sort of suing themselves. But I feel that an adults only community has a pretty significant interest in maintaining our age restrictions.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 05/13/2022 8:08 AM
It's an odd situation because if the 55+ residents sue for failure to enforce, they are sort of suing themselves.

I figure the 55+ residents wanting the covenants enforced would sue first, the family, and while they are at it, the HOA. It could spare all the costs of further litigation down the road. Yes, if the HOA believed it should grant an exception to this family, then those opposing it could be paying both for their own attorney and for the HOA's attorney.

Sites supporting DavidG45's position that the HOPA HOA's covenants may lawfully prohibit a non-adult person, regardless of the non-adult's disability:

https://seniorlivingheadquarters.com/can-a-disabled-person-under-55-live-in-a-55-community/

https://mylifesite.net/blog/post/how-do-age-requirements-work-at-a-ccrc-or-other-senior-living-community/

One sees commentary like this:

Additionally, there are some required exceptions under HOPA if a senior is “associated” with someone with a physical or mental disability. For example, if a senior meets the age requirement for a community but they are the legal guardian of a disabled adult who does not meet the age requirement, the community must make an exception to their minimum age policies for that disabled adult.

and

In addition, HOPA has some required exceptions if a senior is “associated” with a person with a physical or mental disability. Let’s say, for instance, that a senior meets the age requirement for a community, but they are the legal guardian of a disabled adult-child who does not meet the age requirement. In such a case, the community must make an exception to their minimum age policy to accommodate that disabled adult.

This suggests some case law or maybe a HUD rule (based in statute) exists that uses the word "associated" and perhaps elaborates on why a non-age compliant disabled adult, having an age-compliant guardian, will be granted an exception to the minimum age requirements. But apparently, a disabled child will not be granted this exception.

DavidG45, I want to double check: Can say a 23-year-old live with his 60-year old parents in your HOA and be in compliance with the covenants?

Also, have you checked to see whether the family's attorney is either Fair Housing or disability specialized?

Again, just exploring here, in preparation for a meeting with an attorney. And yes, preferably a Fair Housing specialized attorney.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AugustinD on 05/13/2022 8:27 AM
Yes, if the HOA believed it should grant an exception to this family, then those opposing it could be paying both for their own attorney and for the HOA's attorney.

Correction: Those opposing it could be paying both for their own attorney and at least in part, for the HOA's attorney. Depending on the final outcome and the rules on attorney fees for your HOA, those opposing it and all the HOA members could up paying for the HOA's attorney fees.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Is the owner not 55 or older?

Former HOA President

CathyA3 (Ohio)
Posts: 6,299

Posted:

Adding to what I'd said earlier, I strongly recommend that your HOA board and developer lawyer up as well. It's very easy to get it wrong with Fair Housing issues, the penalties for getting it wrong can be steep, and this is not a straight-forward case since the 55+ requirements are themselves an exemption from the Fair Housing laws. You have competing laws here, and that can mean long drawn out litigation unless the parties can come to an agreement.

IMPORTANT: The board should clam up and not discuss this at all with homeowners, only with the HOA's lawyer and fellow board members. They especially should not be talking directly to the family in question. Attorney-client privilege is important, and breaching it can lose your case for you. Lose lips sink ships, and all that. Homeowners of course can talk among themselves, but they should not have access to privileged information that would then have to be disclosed to the family.

Based on what you've said, I get the feeling that the family in question feels that the presence of a disability gives them a free pass to disobey the rules. They may be surprised. A "reasonable" accommodation is not necessarily the one that the person is asking for. I'm not a lawyer, but it seems like giving the family enough time to sell their home is reasonable - and given the hot housing market, they could probably sell pretty quickly and at a higher price than they paid. The family would have to demonstrate some benefit to the minor if they were allowed to remain in the home until he turns 19, and that will depend on what the disability is. A good school system may do it. But I'd expect the HOA to argue that the accommodation will harm the HOA, and they could actually probably put dollar signs on the harm that will be done.

This is really an interesting situation, and I am curious to see how that would play out. Not losing sight of the fact that lives are being affected, of course...

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MelissaP1 on 05/13/2022 8:03 AM
I still like to know the legal instrument a HOA would have to force an owner out for such a violation? It would not be foreclosure unless did not pay dues. Otherwise I do not know of any legal way to kick out an owner for such violation of not being 55+.

For the archives:

A HOA that qualifies under HOPA as being a 55+ community has the legal right to enforce covenants that require that residents be a certain age. The 'legal instrument' is enforcement of the covenants, also known as 'contractual terms.'

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 05/13/2022 8:27 AM

Posted By DavidG45 on 05/13/2022 8:08 AM
It's an odd situation because if the 55+ residents sue for failure to enforce, they are sort of suing themselves.

I figure the 55+ residents wanting the covenants enforced would sue first, the family, and while they are at it, the HOA. It could spare all the costs of further litigation down the road. Yes, if the HOA believed it should grant an exception to this family, then those opposing it could be paying both for their own attorney and for the HOA's attorney.

Sites supporting DavidG45's position that the HOPA HOA's covenants may lawfully prohibit a non-adult person, regardless of the non-adult's disability:

https://seniorlivingheadquarters.com/can-a-disabled-person-under-55-live-in-a-55-community/

https://mylifesite.net/blog/post/how-do-age-requirements-work-at-a-ccrc-or-other-senior-living-community/

One sees commentary like this:

Additionally, there are some required exceptions under HOPA if a senior is “associated” with someone with a physical or mental disability. For example, if a senior meets the age requirement for a community but they are the legal guardian of a disabled adult who does not meet the age requirement, the community must make an exception to their minimum age policies for that disabled adult.

and

In addition, HOPA has some required exceptions if a senior is “associated” with a person with a physical or mental disability. Let’s say, for instance, that a senior meets the age requirement for a community, but they are the legal guardian of a disabled adult-child who does not meet the age requirement. In such a case, the community must make an exception to their minimum age policy to accommodate that disabled adult.

This suggests some case law or maybe a HUD rule (based in statute) exists that uses the word "associated" and perhaps elaborates on why a non-age compliant disabled adult, having an age-compliant guardian, will be granted an exception to the minimum age requirements. But apparently, a disabled child will not be granted this exception.

DavidG45, I want to double check: Can say a 23-year-old live with his 60-year old parents in your HOA and be in compliance with the covenants?

Also, have you checked to see whether the family's attorney is either Fair Housing or disability specialized?

Again, just exploring here, in preparation for a meeting with an attorney. And yes, preferably a Fair Housing specialized attorney.

I can confirm that a 23 year old can reside here with their 60-year old parents. In fact, a 23 year old can live here with their 54-year old parents. We only require the following:

* At least 80% of homes must have at least one resident age 55 or greater
* No home can have any residents under the age of 19

I also find the comments interesting that say a a disabled adult must be allowed to live there (suggesting cases where the minimum age is 55, as opposed to our 19). Our age restriction does include some exceptions. For instance, if a resident over the age of 55 is married to a 17-year old, the spouse is allowed to live here. Or if the residents are given care of a juvenile due to a death in the family, that juvenile may live here temporarily.

SteveH35 (Washington)
Posts: 339

Posted:

David,

Your CIC is clearly in attorney territory here. Here are some quick references for additional information if you'd like to continue your DIY research:

https://www.hud.gov/program_offices/fair_housing_equal_opp/fair_housing_rights_and_obligations
https://www.ochhoalaw.com/fair-housing-law-what-is-required-of-owner-associations/

Regards,
Steve

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CathyA3 on 05/13/2022 8:36 AM

Based on what you've said, I get the feeling that the family in question feels that the presence of a disability gives them a free pass to disobey the rules. They may be surprised. A "reasonable" accommodation is not necessarily the one that the person is asking for. I'm not a lawyer, but it seems like giving the family enough time to sell their home is reasonable - and given the hot housing market, they could probably sell pretty quickly and at a higher price than they paid. The family would have to demonstrate some benefit to the minor if they were allowed to remain in the home until he turns 19, and that will depend on what the disability is. A good school system may do it. But I'd expect the HOA to argue that the accommodation will harm the HOA, and they could actually probably put dollar signs on the harm that will be done.

Why do you say 'the family would have to demonstrate some benefit to the minor [to be?] allowed to remain in the home until he turns 19'?

I am not sure the 'right to have a disabled minor child in one's 55+ HOPA HOA home' can be pitted against the legislative-recognized right for HOPA communities to have covenants prohibiting kids under 19. So far and under HOPA law, I think the latter is an absolute right. (Granted speaking of "absolute" anything is dangerous.)

Just talking here, looking for bigger truths and so on.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Did this family move into this community with the 16 year old disabled person knowing what the restrictions were? If they did it would up my resolve to fight it. They had a choice now let them deal with it.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

So you have this restriction. What does it say about enforcement? How does your HOA actually enforce a violation? It is not enough to say "violation' but then have no punitive follow up. Can you find them? Put a lien? Foreclose? What is the exact punishment for a violation?

Former HOA President

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 05/13/2022 8:42 AM
I also find the comments interesting that say a a disabled adult must be allowed to live there (suggesting cases where the minimum age is 55, as opposed to our 19).

Yet another site suggesting that a disabled non-age-compliant disabled adult may have a legal right to live in the home of an age-compliant guardian:

https://www.55places.com/blog/what-are-the-rules-about-children-in-a-55-community

Excerpt:

Some communities adopt a more relaxed attitude towards age restrictions, allowing for residents 18+ to live in the community so long as one resident is over the age of 55. This can allow for... instances in which a resident is caring for an adult child with a disability.

I think the point is that Congress, circa 1995 and through the enactment of HOPA, intended to preserve housing specifically designed to meet the needs of older persons. To do this means that a HOA meeting HOPA requirements has the lawful right to discriminate on the basis of familial status. "Familial status" frequently means on the basis of whether the household has minor children. I am talking about "no kids allowed" covenants; board-created rules that tend to send the message that kids are not welcome; and when such covenants and rules are lawful. A non-HOPA HOA cannot lawfully discriminate against families with minor children. A HOPA HOA can lawfully decree no families with minor children are allowed.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MelissaP1 on 05/13/2022 9:02 AM
So you have this restriction. What does it say about enforcement? How does your HOA actually enforce a violation?

Court-ordered injunctive relief. A judge orders the family to correct the violation of the covenant. Either move or remove whatever is causing the violation. Plus the covenants may require the family to pay the HOA's attorney fees.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By DavidG45 on 05/13/2022 6:35 AM

I personally think the responsible thing for the board is to make its decision based on minimizing the chances of a successful suit.

here's the main problem. You're thinking about it the wrong way. The responsible thing for the Board is to know and understand how HOAs work in relation to city/state/federal law. Whichever way this shakes out, HOA's cannot enforce any CCR/Rule that contradicts a higher authority law.

Just as an example, a long time ago, many HOA's use to say that no minorities were allowed....think about that and how a minority moving in clearly violates those CCR's, but also that CCR violates numerous laws....

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AugustinD on 05/13/2022 9:05 AM

Posted By DavidG45 on 05/13/2022 8:42 AM
I also find the comments interesting that say a a disabled adult must be allowed to live there (suggesting cases where the minimum age is 55, as opposed to our 19).

Yet another site suggesting that a disabled non-age-compliant disabled adult may have a legal right to live in the home of an age-compliant guardian:

https://www.55places.com/blog/what-are-the-rules-about-children-in-a-55-community

Excerpt:

Some communities adopt a more relaxed attitude towards age restrictions, allowing for residents 18+ to live in the community so long as one resident is over the age of 55. This can allow for... instances in which a resident is caring for an adult child with a disability.

I think the point is that Congress, circa 1995 and through the enactment of HOPA, intended to preserve housing specifically designed to meet the needs of older persons. To do this means that a HOA meeting HOPA requirements has the lawful right to discriminate on the basis of familial status. "Familial status" frequently means on the basis of whether the household has minor children. I am talking about "no kids allowed" covenants; board-created rules that tend to send the message that kids are not welcome; and when such covenants and rules are lawful. A non-HOPA HOA cannot lawfully discriminate against families with minor children. A HOPA HOA can lawfully decree no families with minor children are allowed.

Further reading suggests that, through the Fair Housing Act, part of HUD's mission is to reduce the number of homeless people. Disabled adults are at particularly high risk of homelessness. Disabled kids by contrast may not legally live on the streets. The courts et cetera will find disabled kids homes (for good or bad, as foster homes go). Buried somewhere in case law and/or HUD's rules (based in statute) may be words to the effect that HOPA cannot prohibit non-age compliant, disabled adults from living with age-compliant, 55+ guardians residing in a HOPA community. This reduces the number of homeless people and so the burden on society in general from, ya know, keeping these poor disabled and homeless souls alive and with some measure of dignity.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 05/13/2022 9:19 AM

here's the main problem. You're thinking about it the wrong way. The responsible thing for the Board is to know and understand how HOAs work in relation to city/state/federal law. Whichever way this shakes out, HOA's cannot enforce any CCR/Rule that contradicts a higher authority law.

Just as an example, a long time ago, many HOA's use to say that no minorities were allowed....think about that and how a minority moving in clearly violates those CCR's, but also that CCR violates numerous laws....

Are you sure DavidG45 is thinking about this the wrong way? Are you sure the Fair Housing Act prohibits all 55+ communities from prohibiting families with minor children?

For the archives:
The Fair Housing Act allows 55+ communities meeting certain requirements to prohibit, via its covenants, families with minor children.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By JohnT38 on 05/13/2022 8:54 AM
Did this family move into this community with the 16 year old disabled person knowing what the restrictions were? If they did it would up my resolve to fight it. They had a choice now let them deal with it.

They did - and I know this because this was a resale, and the previous owners contacted me prior to closing asking for clarification on the age requirements, because the oldest resident is 53 and had asked about our rules.

However, one problem we have is that our property manager failed to provide the age restrictions to them as part of the "resale certificate" and they claim the real estate agent (buyer and seller) told them "it would be okay." So they claim they did not know the age restriction would apply.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By AugustinD on 05/13/2022 9:36 AM

Posted By AugustinD on 05/13/2022 9:05 AM

Posted By DavidG45 on 05/13/2022 8:42 AM
I also find the comments interesting that say a a disabled adult must be allowed to live there (suggesting cases where the minimum age is 55, as opposed to our 19).

Yet another site suggesting that a disabled non-age-compliant disabled adult may have a legal right to live in the home of an age-compliant guardian:

https://www.55places.com/blog/what-are-the-rules-about-children-in-a-55-community

Excerpt:

Some communities adopt a more relaxed attitude towards age restrictions, allowing for residents 18+ to live in the community so long as one resident is over the age of 55. This can allow for... instances in which a resident is caring for an adult child with a disability.

I think the point is that Congress, circa 1995 and through the enactment of HOPA, intended to preserve housing specifically designed to meet the needs of older persons. To do this means that a HOA meeting HOPA requirements has the lawful right to discriminate on the basis of familial status. "Familial status" frequently means on the basis of whether the household has minor children. I am talking about "no kids allowed" covenants; board-created rules that tend to send the message that kids are not welcome; and when such covenants and rules are lawful. A non-HOPA HOA cannot lawfully discriminate against families with minor children. A HOPA HOA can lawfully decree no families with minor children are allowed.

Further reading suggests that, through the Fair Housing Act, part of HUD's mission is to reduce the number of homeless people. Disabled adults are at particularly high risk of homelessness. Disabled kids by contrast may not legally live on the streets. The courts et cetera will find disabled kids homes (for good or bad, as foster homes go). Buried somewhere in case law and/or HUD's rules (based in statute) may be words to the effect that HOPA cannot prohibit non-age compliant, disabled adults from living with age-compliant, 55+ guardians residing in a HOPA community. This reduces the number of homeless people and so the burden on society in general from, ya know, keeping these poor disabled and homeless souls alive and with some measure of dignity.

Wouldn't this be a very poor argument if they knowingly and voluntarily entered into a contract with a community that had age restrictions? Unless they could demonstrate that they had no other options where they could buy then I would hope this argument would not be accepted. (I am assuming they had custody of the disabled child when they bought.)

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AdamL1 on 05/13/2022 9:19 AM

Posted By DavidG45 on 05/13/2022 6:35 AM

I personally think the responsible thing for the board is to make its decision based on minimizing the chances of a successful suit.

here's the main problem. You're thinking about it the wrong way. The responsible thing for the Board is to know and understand how HOAs work in relation to city/state/federal law. Whichever way this shakes out, HOA's cannot enforce any CCR/Rule that contradicts a higher authority law.

Just as an example, a long time ago, many HOA's use to say that no minorities were allowed....think about that and how a minority moving in clearly violates those CCR's, but also that CCR violates numerous laws....

Our age restriction does not violate any law - this is long settled based on the 1995 HOPA.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AugustinD on 05/13/2022 9:39 AM

Posted By AdamL1 on 05/13/2022 9:19 AM

here's the main problem. You're thinking about it the wrong way. The responsible thing for the Board is to know and understand how HOAs work in relation to city/state/federal law. Whichever way this shakes out, HOA's cannot enforce any CCR/Rule that contradicts a higher authority law.

Just as an example, a long time ago, many HOA's use to say that no minorities were allowed....think about that and how a minority moving in clearly violates those CCR's, but also that CCR violates numerous laws....

Are you sure DavidG45 is thinking about this the wrong way? Are you sure the Fair Housing Act prohibits all 55+ communities from prohibiting families with minor children?

For the archives:
The Fair Housing Act allows 55+ communities meeting certain requirements to prohibit, via its covenants, families with minor children.

I'm not sure, hence my qualifier. I am sure thought that thinking about HOA decisions in terms of what you feel should happen or what you feel will annoy the least people is not good. Decisions should be made according to law and governing documents and jurisdiction.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By AugustinD on 05/13/2022 8:44 AM

Posted By CathyA3 on 05/13/2022 8:36 AM

Based on what you've said, I get the feeling that the family in question feels that the presence of a disability gives them a free pass to disobey the rules. They may be surprised. A "reasonable" accommodation is not necessarily the one that the person is asking for. I'm not a lawyer, but it seems like giving the family enough time to sell their home is reasonable - and given the hot housing market, they could probably sell pretty quickly and at a higher price than they paid. The family would have to demonstrate some benefit to the minor if they were allowed to remain in the home until he turns 19, and that will depend on what the disability is. A good school system may do it. But I'd expect the HOA to argue that the accommodation will harm the HOA, and they could actually probably put dollar signs on the harm that will be done.

Why do you say 'the family would have to demonstrate some benefit to the minor [to be?] allowed to remain in the home until he turns 19'?

I am not sure the 'right to have a disabled minor child in one's 55+ HOPA HOA home' can be pitted against the legislative-recognized right for HOPA communities to have covenants prohibiting kids under 19. So far and under HOPA law, I think the latter is an absolute right. (Granted speaking of "absolute" anything is dangerous.)

Just talking here, looking for bigger truths and so on.

I was thinking about accommodations in general. The law doesn't require that the HOA grant the accommodation that the person requests, only that it provide an accommodation that meets the person's need. So you'd have to look at what benefit remaining in the community until age 19 provides vs. some other accommodation, to help determine if that other accommodation would satisfy the "reasonableness" requirement. In this case, since the disabled person is a minor, there many not be another accommodation that would satisfy the law.

The more I read about this situation, the messier it seems. For instance, I wonder how far the family will get when they claim they didn't know about the age restriction, since the governing documents are recorded and recording usually counts as disclosure.

I also wonder whether or not the family is reckoning with what it will be like to live in a community where a large number of neighbors hate your guts, both because of appearing to violate the age requirement *and* because of the cost of litigation which every homeowner will have to pay. And, given their history so far, the family will probably file another lawsuit because of the "hostile environment".

I truly hope the lawyers on both sides sit their clients down and give them the hard facts. With luck, pragmatism will prevail.

SheliaH (Indiana)
Posts: 6,964

Posted:

I think I've said this before in one of your conversations where this came up, but just in case, I'll repeat it here:

There's no guarantee that any lawsuit will win or lose, although some stand a far better chance than others. In this case, I suspect the developer is pitching this decision to the new board because they don't want the bad publicity that will surely come if they tell the homeowner the teenager can't live in the community because it's 55+. I'm sure the soon-to-be new board may also have this in the back of their minds - no wonder the attorney wants a delay until after the election.

You're old enough to realize this, but in case someone needs to remind you, there is no 100% black and white in anything. Only a few things are one or the other, but most everything else comes in various shades of gray. I suspect you're on the side of the other homeowners who are upset about this, and I do see your point. This is a 55+ community, these people knew that when they moved in and should have either canceled the purchase of the unit or spoken to the developer about getting some sort of exemption for, say six months, while they looked for a new place with no restrictions (perhaps this place could be rented out until sold - and the renter would have to be at least 55). Life happens and it's regrettable what happened to this family, but it's not just about them - you and your neighbors moved into this community because it's 55+ and shouldn't have to be penalized based on the actions of one family.

On the other hand, there is something called compassion - do you have any? How do you know this child didn't come into the picture until after the closing and it was too late to do an about-face? If this is the grandchild of the homeowner, what do you expect them to do - sit there and watch the kid being placed in foster care because it's a 55+ community and there's no room whatsoever for some sort of compromise? What would you do if YOUR family were in this situation? If the child has a disability, moving him away from people who are familiar with his needs could be a major setback and if he's already lost his parents for whatever reason, this would add even more trauma. Has this child caused any problems since moving in - if not, would it kill you and your neighbors to at least give the family a year? Normally, I'd say six months, but the family also has to arrange for services to help care for the child and that's not always available everywhere.

You don't say you're running for a spot on the board, but if you are and you win, make your case for whichever side you're on and let the chips fall where they may. We don't live in your community, and so it really doesn't matter what we think. You don't know the thoughts of the candidates either regarding this issue - if you're curious, go and ask them, and vote based on that. If you end up with a group of people who will say no to the family and prepare the community for a lawsuit, so be it.

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

LetA (Nevada)
Posts: 2,679

Posted:

It sounds like your declarant is kicking the can down the road and hanging the new board on the hook and trying to escape responsibility.
Dig your heels in and brace yourselves for a fight, you will more that likely prevail, but it will cost some money. If the declarant has not sent a violation notice and enforced the covenants, they are in breach
of contract and fiduciary duty. Hopefully When your full board is seated you will do the right thing and being the warning letters and fining process. Under no circumstances grant a waiver because it
will open the door and set a prescient for everyone to violate the covenants.

CathyA3 (Ohio)
Posts: 6,299

Posted:

And speaking of pragmatism, this is a large community that is still being built out. The housing market is hot. Why on earth would the family not consider simply moving into the non-age restricted area if they have their hearts set on living in that community? What on earth is so uniquely wonderful about the 55+ section? The family claims they didn't know about the age restriction, so presumably they didn't chose that section deliberately.

Frankly, given the likelihood of much litigation in the future, if I were the developer I'd be trying to cut these folks a deal and maybe picking up their moving costs.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By DavidG45 on 05/13/2022 9:43 AM

Posted By JohnT38 on 05/13/2022 8:54 AM
Did this family move into this community with the 16 year old disabled person knowing what the restrictions were? If they did it would up my resolve to fight it. They had a choice now let them deal with it.

They did - and I know this because this was a resale, and the previous owners contacted me prior to closing asking for clarification on the age requirements, because the oldest resident is 53 and had asked about our rules.

However, one problem we have is that our property manager failed to provide the age restrictions to them as part of the "resale certificate" and they claim the real estate agent (buyer and seller) told them "it would be okay." So they claim they did not know the age restriction would apply.

David

I assume as part of the purchase, the buyer agreed to abide by the Covenants and Bylaws even if they do not remember agreeing to such. I do not remebmer, the agent said so and so, are the typical cop outs.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By SheliaH on 05/13/2022 10:03 AM
I think I've said this before in one of your conversations where this came up, but just in case, I'll repeat it here:

There's no guarantee that any lawsuit will win or lose, although some stand a far better chance than others. In this case, I suspect the developer is pitching this decision to the new board because they don't want the bad publicity that will surely come if they tell the homeowner the teenager can't live in the community because it's 55+. I'm sure the soon-to-be new board may also have this in the back of their minds - no wonder the attorney wants a delay until after the election.

You're old enough to realize this, but in case someone needs to remind you, there is no 100% black and white in anything. Only a few things are one or the other, but most everything else comes in various shades of gray. I suspect you're on the side of the other homeowners who are upset about this, and I do see your point. This is a 55+ community, these people knew that when they moved in and should have either canceled the purchase of the unit or spoken to the developer about getting some sort of exemption for, say six months, while they looked for a new place with no restrictions (perhaps this place could be rented out until sold - and the renter would have to be at least 55). Life happens and it's regrettable what happened to this family, but it's not just about them - you and your neighbors moved into this community because it's 55+ and shouldn't have to be penalized based on the actions of one family.

On the other hand, there is something called compassion - do you have any? How do you know this child didn't come into the picture until after the closing and it was too late to do an about-face? If this is the grandchild of the homeowner, what do you expect them to do - sit there and watch the kid being placed in foster care because it's a 55+ community and there's no room whatsoever for some sort of compromise? What would you do if YOUR family were in this situation? If the child has a disability, moving him away from people who are familiar with his needs could be a major setback and if he's already lost his parents for whatever reason, this would add even more trauma. Has this child caused any problems since moving in - if not, would it kill you and your neighbors to at least give the family a year? Normally, I'd say six months, but the family also has to arrange for services to help care for the child and that's not always available everywhere.

You don't say you're running for a spot on the board, but if you are and you win, make your case for whichever side you're on and let the chips fall where they may. We don't live in your community, and so it really doesn't matter what we think. You don't know the thoughts of the candidates either regarding this issue - if you're curious, go and ask them, and vote based on that. If you end up with a group of people who will say no to the family and prepare the community for a lawsuit, so be it.

I understand what you are saying about compassion. I have a 22-year-old daughter with the same disability as the child in question, so I completely get their situation. On the other hand:

* When we started looking for a community, our daughter was only 17 and we knew we couldn't move in until she was 19. We didn't think rules don't apply to us.

* This is a fairly wealthy family, and can easily sell their home and build a home down the block on the non-55+ side. They could have done that from the start.

* They have already made friends with people in the non-55+ side and have been using their compassion to turn them against those of us on the 55+ side, thus dividing our community. It's pretty ugly right now.

* They put us in a situation where we are truly in a no-win situation. So my sympathy is pretty tempered.

* In the end, the board must look out for the needs of the entire community, and must enforce our rules. Bending them out of compassion seems like a violation of our fiduciary duty. Not to mention the potential for dozens of families filing suit if we grant the waiver.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By SheliaH on 05/13/2022 10:03 AM

You don't say you're running for a spot on the board, but if you are and you win, make your case for whichever side you're on and let the chips fall where they may. We don't live in your community, and so it really doesn't matter what we think. You don't know the thoughts of the candidates either regarding this issue - if you're curious, go and ask them, and vote based on that. If you end up with a group of people who will say no to the family and prepare the community for a lawsuit, so be it.

btw, I am running for the board, and if I do get on it I think your advice is sound. I will state my case and leave it at that. I need to stop agonizing over it.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CathyA3 on 05/13/2022 10:03 AM

Posted By AugustinD on 05/13/2022 8:44 AM

Posted By CathyA3 on 05/13/2022 8:36 AM

Based on what you've said, I get the feeling that the family in question feels that the presence of a disability gives them a free pass to disobey the rules. They may be surprised. A "reasonable" accommodation is not necessarily the one that the person is asking for. I'm not a lawyer, but it seems like giving the family enough time to sell their home is reasonable - and given the hot housing market, they could probably sell pretty quickly and at a higher price than they paid. The family would have to demonstrate some benefit to the minor if they were allowed to remain in the home until he turns 19, and that will depend on what the disability is. A good school system may do it. But I'd expect the HOA to argue that the accommodation will harm the HOA, and they could actually probably put dollar signs on the harm that will be done.

Why do you say 'the family would have to demonstrate some benefit to the minor [to be?] allowed to remain in the home until he turns 19'?

I am not sure the 'right to have a disabled minor child in one's 55+ HOPA HOA home' can be pitted against the legislative-recognized right for HOPA communities to have covenants prohibiting kids under 19. So far and under HOPA law, I think the latter is an absolute right. (Granted speaking of "absolute" anything is dangerous.)

Just talking here, looking for bigger truths and so on.

I was thinking about accommodations in general. The law doesn't require that the HOA grant the accommodation that the person requests, only that it provide an accommodation that meets the person's need.

And by my reading, does not unreasonably burden the HOA. E.g. financially. Cost is one measure of what is "reasonable" for the purposes of the phrase, "reasonable accommodation" of course. As I am sure you know.

Quote:

Posted By CathyA3 on 05/13/2022 10:03 AM
So you'd have to look at what benefit remaining in the community until age 19 provides vs. some other accommodation, to help determine if that other accommodation would satisfy the "reasonableness" requirement. In this case, since the disabled person is a minor, there many not be another accommodation that would satisfy the law.

Okay.

Of course, I so far am in the camp that alleges that in this case, there is no other accommodation. The law is what it is. A HOPA HOA may lawfully enforce covenants prohibiting non-adults.

Quote:

Posted By CathyA3 on 05/13/2022 10:03 AM
I also wonder whether or not the family is reckoning with what it will be like to live in a community where a large number of neighbors hate your guts, both because of appearing to violate the age requirement *and* because of the cost of litigation which every homeowner will have to pay. And, given their history so far, the family will probably file another lawsuit because of the "hostile environment".

Since it's a HOPA community, the FHA (HOPA section) prohibits a claim of hostile environment on the basis of familial status. That is, HOPA says HOPA-communities may discriminate on the basis of familial status, including being 'hostile' on this basis, without a victim being able to claim discrimination under the FHA. (Of course if the community's hostility starts violating other laws, like criminal harassment, this is a different matter.)

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By CathyA3 on 05/13/2022 10:10 AM
And speaking of pragmatism, this is a large community that is still being built out. The housing market is hot. Why on earth would the family not consider simply moving into the non-age restricted area if they have their hearts set on living in that community? What on earth is so uniquely wonderful about the 55+ section? The family claims they didn't know about the age restriction, so presumably they didn't chose that section deliberately.

Frankly, given the likelihood of much litigation in the future, if I were the developer I'd be trying to cut these folks a deal and maybe picking up their moving costs.

Ditto.

Frankly, I'm sure the homeowners DID know about the restriction, but did it anyway, thinking others would say "but what about the grandchild?" (because they're also 55+). They probably read some advertisement that stated the developer was building a 55+ community and if they didn't, are they saying the NEVER heard or saw anything saying that area over there is being built out as a 55+ community? I don't think so.

Finally, I'm sure the documents they got at closing said something about it being a 55+ community - if they didn't take the time to read it, that's their problem. Or they ignored it because there are some people who read everything and STILL ignore pertinent stuff because THEY are the exception to the rules.

All of that said, I might err on the side of compassion, but I'd also ask things like:

When did you close on the house and when did the situation arise that resulted in you taking custody of your grandchild?

Was there no one else in your family who could take custody? If you didn't ask anyone why not?

Did you contact the developer as soon as this situation arose to see if they could make an exception or perhaps look into putting you in another home without the age restriction? If not, why not?

If David is running for a board position and gets it, these are the questions I'd ask (and a few more) in considering what the board should do. My compromise might be to help them find another home in the community without the age restriction if this is where they want to live. Otherwise, they have six months to move out of the 55+ community- if they refuse, they have six months to move out of the 55+ community, as they knew what they were doing and still flouted the rules.

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

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 05/13/2022 9:43 AM

However, one problem we have is that our property manager failed to provide the age restrictions to them as part of the "resale certificate" and they claim the real estate agent (buyer and seller) told them "it would be okay." So they claim they did not know the age restriction would apply.

Please clarify:

Is it the covenants (CC&Rs) that have the age restrictions?

Are you saying that no one provided a copy of the CC&Rs to the family?

A blurb rom the Delaware HOA Act, in a long gnarly (as the kids say) section on resale yada:

If the unit owner has requested the information from the association and the association fails to provide any portion of the requested information or if the unit owner, after reasonable investigation, has no information on any particular item to be included in the certificate, or if the requested information does not exist, the unit owner shall include a statement to that effect in the certificate from the unit owner.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By SheliaH on 05/13/2022 10:03 AM
On the other hand, there is something called compassion - do you have any?

Come on. I think this is erroneous and below the belt. Congress in 1995 passed HOPA specifically because of compassion for older people having the right to live in housing that does not have kids.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 05/13/2022 10:30 AM

Posted By DavidG45 on 05/13/2022 9:43 AM

However, one problem we have is that our property manager failed to provide the age restrictions to them as part of the "resale certificate" and they claim the real estate agent (buyer and seller) told them "it would be okay." So they claim they did not know the age restriction would apply.

Please clarify:

Is it the covenants (CC&Rs) that have the age restrictions?

Are you saying that no one provided a copy of the CC&Rs to the family?

A blurb rom the Delaware HOA Act, in a long gnarly (as the kids say) section on resale yada:

If the unit owner has requested the information from the association and the association fails to provide any portion of the requested information or if the unit owner, after reasonable investigation, has no information on any particular item to be included in the certificate, or if the requested information does not exist, the unit owner shall include a statement to that effect in the certificate from the unit owner.

Yes, these needs clarification. The HOA was first established, and its plan submitted to the town, in 2017. In 2018 they expanded the scope of the project, adding the 200 lots for the 55+ side. At that time they filed a two-page "Amendment" that specifies which lots are in "The Legacy" (our 55+ community) along with the specific age restrictions. When the builder sells homes they are meticulous about providing all of the paperwork, and verifying ages. However, this was a resale, and apparently the HOA (via our property manager in our case) must provide a "resale certificate" that includes all of our rules and governing documents. They failed to provide the Age Amendment.

Now, from what I have been told, this Age Amendment did make its way to the closing somehow, and they did sign it. Unfortunately, the developer in his role as Board President has not requested a title search in order to confirm this. If it wasn't signed it seems as if we're going to get sued either way and probably lose either way!

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnT38 on 05/13/2022 9:44 AM
Wouldn't this be a very poor argument if they knowingly and voluntarily entered into a contract with a community that had age restrictions?

I am not sure of which argument you are speaking.

By my reading, this particular HOA (1) can prohibit a kiddo who is disabled and 16-years-old from living at the HOA; and (2) cannot prohibit the residency of a disabled adult (meaning 19 or older here) whose parents are the disabled adult's guardians and whose parent reside in the HOPA HOA.

To consider another scenario: Suppose a hypothetical HOA covenants that no one under age 55, period, is allowed. The HOA meets HOPA requirements. Can the HOA prohibit the residency of a 30-year old disabled person whose parents are 60 years old and who own a home at the HOA? My impression so far is the law does not allow this. I have not put my finger on which law, but I suspect it is a HUD rule (appearing in the Code of Federal Regulations yada) based in the Fair Housing Act.

I do not want to get into hypotheticals too much. Obviously this is hard to discuss on the internet, given that HOPA overrides FHA and some finer points are arising. All I know is I am searching for something that says the HOA cannot do what DavidG45 would like to do, and I am coming up short. In other words, I think enforcing the covenant (and so requiring the 16-year-old disabled kiddo here to move) is lawful. It's not about compassion. It's about respecting the covenants and the rest of the law for 'older person communities.' Congress pointedly said that older people should have rights to live in child-free communities. No one has tried to throw out HOPA, after all. Instead they just move into non-HOPA communities.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 05/13/2022 10:37 AM
[stuff snipped about the disclosure. Do look back at the Delaware statute section I cited. There's a lot here to say the HOA will be fine, when it comes to disclosure] If it wasn't signed it seems as if we're going to get sued either way and probably lose either way!

About probably losing either way: I disagree.

The biggest argument is what I consider the slippery slope argument that CathyA3 presented: A trial court (with a judge lacking CathyA3's wisdom) rules for the family. The HOA appeals. The appeals court and its merry band of clerks actually reads HOPA and all the case law. The appeals court judges say, hypothetically:

If this honorable Court declares that minor children, even disabled minor children, have a right to live in HOPA HOAs, then under what authority would this be? The law says HOPA-qualified communities may restrict residency on the basis of age. The law exempts HOPA communities from the rest of the FHA's prohibitions on discrimination on the basis of familial statu). The one exception, under the law and to keep disabled adults from becoming homeless and a burden on society, is for adult disabled children of owners who are age-compliant. In the case of adult disabled people, the law prohibits any age restriction (other than their being non-minors).

Non-minor children have options to avoid homelessness. For one, the law requires parents to care for non-minor children. If they refuse to care for non-minor children, the state has instruments in place to take custody and keep the minor child in place. This is not so for disabled adults. Disabled adults are at clear risk of homelessness.

This Courtfinds no authority for requiring that HOPA communities permit minor children, including disabled minor children, to reside at these communities. This Court does foresee that, if it did require HOPA communities to permit the residency of disabled minor children with their 55+ parents, then where is the line to be drawn? Couldn't such communities become inundated with families with disabled minor children, defeating the purpose of HOPA?

No violation of the Constitution is occurring here. No violation of the Fair Housing Act is occurring. This Court has no authority to override Congress's decision to establish and protect housing for older Americans.

On the other hand, court is expensive. The OP needs a solution. Here's one:

Buy the family out.

Seriously. This worked great not long ago for another poster here. He had a non-age compliant household in a HOPA community. The HOA came down on him. He argued with the HOA, asking for an exception for reasons xyz. He submitted a HUD complaint. After a few months, the HOA said, "How about the HOA buys your home for $10,000 more than the market value and with no realtor's commission?" The owner gave it a lot of thought and agreed.

AFAIC this solution was brilliant.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

David

I see two options for your association:

1. Uphold your Covenants. This could get legally costly.
2. Offer them a "compassionate" exemption until the child turns 19. This does risk a law suit from some owners.

#1 has already started. #2 could be nothing more then a threat, which most are.

AugustinD
Posts: 3,698

Posted:

Posted By AugustinD on 05/13/2022 11:04 AM
In the case of adult disabled people, the law prohibits any age restriction (other than their being non-minors).

Non-minor children have options to avoid homelessness. For one, the law requires parents to care for non-minor children. If they refuse to care for non-minor children, the state has instruments in place to take custody and keep the minor child in place. Typos galore. Try:

In the case of adult disabled people, the law prohibits any age restriction (other than their being non-minors), as long as they reside with parents or other guardians who are HOPA age compliant.

Minor children have options to avoid homelessness. For one, the law requires parents to care for minor children. If parents refuse to care for their minor child, the state has instruments in place to take custody and keep the minor child in a safe home.

CathyA3 (Ohio)
Posts: 6,299

Posted:

OK, Sheila, Augustin and I agree: buy out the family. It's a predictable expense, unlike litigation which can be open-ended and unpredictable (especially in this case since the family seems to be eager to file lawsuits). Bonus points if you can get them to move outside of the HOA altogether. :-)

It's annoying since I think you'd be rewarding the family for bad behavior (like Sheila, I'm skeptical about their claim that they were unaware of the age requirement - even if the PM or someone else dropped the ball, there was enough other information available to at least raise the question). But it's the lesser of two probable evils.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By CathyA3 on 05/13/2022 11:20 AM
OK, Sheila, Augustin and I agree: buy out the family. It's a predictable expense, unlike litigation which can be open-ended and unpredictable (especially in this case since the family seems to be eager to file lawsuits). Bonus points if you can get them to move outside of the HOA altogether. :-)

It's annoying since I think you'd be rewarding the family for bad behavior (like Sheila, I'm skeptical about their claim that they were unaware of the age requirement - even if the PM or someone else dropped the ball, there was enough other information available to at least raise the question). But it's the lesser of two probable evils.

That actually sounds like an interesting idea. It solves the problem with less negative PR from the "other" side of the community. But does the HOA have the authority to spend that kind of money? That would come to $1,000 per homeowner. Then, I guess, we turn around and sell the house? Does the HOA hold title in the mean time? Lots of questions on my end...

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By JohnC46 on 05/13/2022 11:06 AM
David

I see two options for your association:

1. Uphold your Covenants. This could get legally costly.
2. Offer them a "compassionate" exemption until the child turns 19. This does risk a law suit from some owners.

#1 has already started. #2 could be nothing more then a threat, which most are.

However, the threat of suit in case #1 is still just a threat. A threat from, I have now discovered, comes from a young attorney who passed the bar exam earlier this year. I suspect he wrote the request for waiver on the cheap, so I'm not sure this family would want to spend $$$ on a lawsuit which, I have to believe, any experienced attorney would tell them is a longshot.

On the other hand, #2 is a genuine threat. I would say a near certainty. People are are angry - most are MUCH more angry than I am. And they have the advantage in that any legal fees would probably be divided between at least 50 to 100 families.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 05/13/2022 11:50 AM

Posted By JohnC46 on 05/13/2022 11:06 AM
David

I see two options for your association:

1. Uphold your Covenants. This could get legally costly.
2. Offer them a "compassionate" exemption until the child turns 19. This does risk a law suit from some owners.

#1 has already started. #2 could be nothing more then a threat, which most are.

However, the threat of suit in case #1 is still just a threat. A threat from, I have now discovered, comes from a young attorney who passed the bar exam earlier this year.

I love it.

Not that the kid is wrong. More that she/he's way too green to be believable. I do not care if she/he graduated from freakin' Yale law school either.

Did he/she graduate from a reputable law school?

I know of seasoned, older attorneys who will not touch fair housing disputes, on account of it is so specialized. On the other hand from what I have seen, some attorneys, including the young ones, will write a letter for anything as soon as a person writes them a check.

"Know thy enemy... " -- Chinese General Sun Tzu

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 05/13/2022 11:56 AM

Posted By DavidG45 on 05/13/2022 11:50 AM

Posted By JohnC46 on 05/13/2022 11:06 AM
David

I see two options for your association:

1. Uphold your Covenants. This could get legally costly.
2. Offer them a "compassionate" exemption until the child turns 19. This does risk a law suit from some owners.

#1 has already started. #2 could be nothing more then a threat, which most are.

However, the threat of suit in case #1 is still just a threat. A threat from, I have now discovered, comes from a young attorney who passed the bar exam earlier this year.

I love it.

Not that the kid is wrong. More that she/he's way too green to be believable. I do not care if she/he graduated from freakin' Yale law school either.

Did he/she graduate from a reputable law school?

I know of seasoned, older attorneys who will not touch fair housing disputes, on account of it is so specialized. On the other hand from what I have seen, some attorneys, including the young ones, will write a letter for anything as soon as a person writes them a check.

"Know thy enemy... " -- Chinese General Sun Tzu

Yes, it appears to be a decent, state law school. Sun Tzu's advice is what I was thinking when I started poking around!