Following Age Verification Procedures

I currently live in a 55+ community that consists of 52 single family homes. I'm concerned that our HOA Board is not following all of the requirements for 55+ communities, which might jeopardize our 55+ status if it was challenged. They don't collect affidavits from residents or have any age verification procedures as stated in our CC&Rs and By Laws. The required re-survey every two years consists of an Occupancy Report that states the number of homes that are occupied, the number that are rentals, and the number that are not occupied, "thus meeting the occupancy requirements in the CC&Rs." They’ve never asked me for age verification documentation. I’ve emailed our HOA Board with my concerns and have asked for something in writing that shows we are in compliance. Their response:

*We use the informal survey method to track that we are in compliance with the 55+ community standard.
*Since you received a copy of the CC&R's when you purchased your home, and this is an over 55 community, you were aware of this requirement and we wouldn't need to survey you. We don't keep a separate file on each homeowner with their information.
*We are in compliance and are not in jeopardy of losing our 55+ status. At this time, the board will not be visiting this subject. 
 
Are there new rules that I’m not aware of where a 55+ community no longer needs to follow HOPA requirements and their related CC&Rs? Are there agencies that regulate HOPA communities to make sure they are in compliance? Or would someone need to file an official discrimination complaint before they would begin an inquiry?

I plan to speak with the HOA President in person, but I wanted to gather more information first. Thank you for any clarification on this issue.

Thanks so much for the response. It sounds like I've interpreted things correctly.
I do not plan to file an official complaint with HUD. I would likely be labeled a troublemaker in our community. Unfortunately, their lack of documentation might bite them in the butt eventually. Or maybe not.

Thank you for your informative response.
I find it odd that if HOA Board members decide not to follow an official lawful act (HOPA) or their own CC&Rs or By Laws, there's little recourse. Going to court seems dangerous to all involved.
The solution is definitely beyond anything I can do.

Thanks, Ellen.
My main concern is the potential of losing our 55+ status, and I believe that's a real possibility if it was challenged. Before I sent my very nice email to our HOA Board asking for more information about this particular process, I did extensive research online, read the documentation that the HUD site provides, and called several local HUD and fair housing agencies for information. From what I found, obtaining and saving age verification documentation for each occupant is still part of the HOPA requirements, but our HOA Board apparently believes that is unnecessary. I included the Board's response to my email in my original post, which seemed dismissive. If we lose our 55+ status, I always have the option to move.

Thank you. The information you sent looks familiar based on the research I did.
I'm not sure what you're asking for when you say "If you reproduce exactly what the survey says...." Even though our CC&Rs and By Laws state that occupants must be surveyed through affidavits just like the law requires, the HOA Board does not conduct any physical surveys. As I included in my original post, they told me they use the "informal survey method," whatever that is, and they don't keep occupant age records on file. When I asked how the required 2-year survey is developed and asked to review it, no response. That's all the information I have.

I hate attorneys and those pretending they are attorneys.

Thanks again for your suggestions.

I included a link to the HUD PDF document in my email to them and included some relevant excerpts along with my concerns about potentially losing our 55+ status. As I already mentioned, part of their response was, "We are in compliance and not in jeopardy of losing our 55+ status. At this time, the board will not be visiting this subject." I heard the door slam.

Could you explain the purpose of sending the letter you suggested? Is it just for a legal trail? I'm pretty sure they can't produce any surveys and will most likely just ignore the request.
Are you suggesting that I send it to the HOA Board and also the Idaho Secretary of State office? Is that who manages HOA corporations for compliance? I checked, and there is no agent listed for our HOA.
What results should I expect after sending the letter?

It would definitely inflame the Board when they've already closed the subject on their part. I need to decide if I can deal with a big, fat, painful target on my back.

Thanks for the quick response.

The Board recently fired their attorney because of lack of response to our issues, so we currently don't have an attorney.

I've spoken with a couple of residents who simply don't care. They believe there are other ways to prove 55+ compliance (signing their purchase agreement), which I don't think is valid.

Running for the Board: Oddly, they don't hold elections. A nominating committee approaches people to volunteer for open positions. Making sure there are no opposing candidates, the volunteers are approved for their positions through acclamation. I had never heard of that process until moving here. After the latest exchange, I'm pretty sure they would never approach me for a board position.

At the very least, if I ever decide to sell my home, I have inside information that under 55 buyers are eligible to make offers!!

I will search this site for the threads you suggested.

I manage a 55+ Senior community and almost half are owned by the children of the parent who reside there. The 55+ applies only to the persons residing in the units, not the owners.

Need your thoughts on this strategy. It might just be silly, TV BS that doesn't work in reality.

Once I wait for a reasonable amount of time, I have a Realtor friend who might be willing to pose as a representative of an unnamed "potential client" in our subdivision that is considering selling their home and wants to make sure the HOA is following all the rules for a 55+ community (leaving my name out of it altogether). Would it be reasonable for a Realtor to do a formal document request for their client related to HOPA compliance like you suggested I do? Too obvious?

CjP

If this is such a hot button for you, hire an attorney to write a letter for you rather then play games.

FOLLOW UP...

I finally decided to consult an attorney to help resolve the issue of our HOA failing to collect and maintain age verification documentation in our small 55+ community. My attorney wrote to the HOA agent citing several HUD regulations and Idaho laws the Board was violating. That finally got their attention. They realized they were in violation of HUD rules and immediately implemented an age verification process for all residents. They also sent copies of past biennial surveys I had requested from them earlier but refused to provide—documents I was legally entitled to all along. Problem #1 solved.

In return, I’ve already experienced Sophomoric retaliation efforts from Board members. I fully expect to get my house egged any day.

Problem #2: This whole process brought up yet another question that I hope someone can help clarify: Does our community require 100 percent or only 80 percent of dwellings to be occupied by at least one person 55 and over? I’ve received conflicting answers from the Board. I’m not asking for free legal advice here—just an experienced opinion if possible—but I totally understand if this issue is not appropriate for this Forum.

My attorney and I both interpreted our CC&Rs to mean that only 80 percent of dwellings must be occupied by at least one person 55 years of age or over. The two Board members who stopped at my house to gather age verification documentation from me also confirmed this. When I asked them if our community required 100 percent or 80 percent of homes be occupied by at least one person 55 or over, they both responded, “80 percent, to follow HOPA.”

As I’m sure many readers already know, according to HUD, a community can impose an age limitation more restrictive than required by HOPA—for example, requiring that 100 percent of homes be occupied by at least one person 55 years of age or older—as long as it meets HOPA’s “at least 80 percent” requirement.

I’ve included excerpts from the following relevant documents below.
*Portions of the latest HOA age verification survey results
*Fair Housing Act section from our CC&Rs

AGE VERIFICATION SURVEY RESULTS
I finally received a copy of the most recent age verification survey results, and part of that document states the following:
“It is the intent of the HOA to claim the housing for older persons exemption stated in the Housing for Older Persons Act of 1995 (HOPA). As stated in the CC&Rs, subject to compliance with the Fair Housing Act…all Dwelling Units shall be occupied by at least one person 55 years of age or older and no one under 18 years of age (55+ families).” —end—

My argument:
—This statement is misleading and should be corrected. If the phrase “all Dwelling Units” is to be interpreted as 100 percent, we do not need to have 100 percent of the homes occupied by at least one person 55 and older to be in compliance with the Fair Housing Act. That is simply an acceptable option that HUD allows.
—Previous survey reports stated, “In compliance with HOPA, [our HOA] requires that 100 percent of the occupied titled homes be occupied by a person 55 years of age or older.” When my attorney asked the HOA about this statement, they referred him to the section of the CC&Rs below.

CC&R SECTION
“The Property shall be used for 'housing for older persons' as defined in Section 3607 of the Fair Housing Act (I.e., at least eighty percent [80%] of the occupied Dwelling Units occupied by at least one person who is fifty-five (55) years of age or older). Subject to compliance with the Fair Housing Act and any other applicable local, state or federal law, ordinance, rule or regulation, all Dwelling Units shall be occupied by at least one (1) person who is fifty-five (55) years of age or older and no Dwelling Unit shall be permanently occupied by any person who is under eighteen (18) years of age. Notwithstanding the foregoing, guests under eighteen (18) years of age may occupy Dwelling Units for a period not to exceed three (3) continuous weeks.” —end—

My argument/question:
Just like the survey report, this section is misleading and vague.
—If the phrase “all Dwelling Units” is to be interpreted as 100 percent, the Fair Housing Act does not require 100 percent of homes to be occupied by at least one person 55 and over to be in compliance. Again, this is simply an acceptable option that HUD allows.
—Is this section clear enough to be interpreted as 100 percent of Dwelling Units rather than 80 percent? It wasn’t clear to me or to others.

Maybe all of the verbiage in the documents I’ve referenced is perfectly suitable and could easily hold up in any court. I just wish the statements were less vague. When I get ready to sell my home, the clarity of this information will be important for marketing purposes.

Thank you for spending the time wading through my lengthy post. I really appreciate any help or insights. Thank you.

The sentence I've included is the exact wording in our CC&Rs. I didn't change anything.

Honestly, I don’t think the wording is ambiguous. I think it can only be read to say 100% of homes must have at least one occupant age 55+. My guess is that the Board for years has misunderstood this in the same way they misunderstood their age survey requirements. But whoever wrote that paragraph intended that all homes meet the 55+ age requirement.

Thank you for the responses. I think there's some general confusion between Board members about the 80 or 100 percent requirement.

If the original community intended for 100 percent of the homes to be occupied by at least one person 55 or over, is it sufficient to simply write that particular sentence/paragraph as it is? Or would the association need to go through some sort of formal process to deviate from the standard 80/20 percent requirement? For example, when the original CC&Rs were written, would it require a majority vote to implement that change? The document is very old.

I have quite a bit of knowledge on this subject. The answer is that there is no special process to write covenants more strict than the minimum requirements for HOPA. Note the 80/20 is not a “standard”, it is a “minimum.” A community could make their rule that every single resident must be at least 65 years old. So long as your minimum age is at least 55, and you require at least 80%, you satisfy HOPA requirements.

I wasn't sure if you were talking about an amendment or if you just wanted to change how you do things but the changes would not affect your governing documents. Either way, I don't know all of the in's and out's of managing 55+ communities or how much wiggle room you have to change what you've been doing.

I'll mention something our lawyers told us. They said that if we ever got a hint that a Fair Housing issue may be in play, we should contact their office for guidance. It's easy to get things wrong 0 and as you noticed, many board members are completely unaware of the association's obligations and how big a deal mistakes can be. Given how nitpicky this law is, I wouldn't assume that any proposed change would be OK without getting the lawyer's blessing first.

Do you mean: If the intent was for 100% of homes to be occupied by at least one person 55 or over, was it sufficient to write what is currently in the covenants?

Having an "I.e." in a declaration is highly unusual. Words matter. Including the "I.e." statement murks things up IMO.

To me the problem is the foolishness of including in the covenant a reference to the 80% minimum that HOPA requires. Why do that? Anyone can look up HOPA and identify the 80% minimum. I continue to feel the "I.e." section adds ambiguity. It was stupid to include this IMO. But there it is.

I think you are asking about how to amend the Declaration. The answer to this is in the amendment section of the Declaration and state statutes.

I can understand how people (like DavidG45) feel the covenant is clear. I just think there's a goodly amount of legal room for some rascal attorney to say the number is 80%.

Is there any other section of the Declaration or Articles of Incorporation that speaks to all (100%) of homes being required to have at least one person who is 55 or older? If so, this would help.

Let's get down to brass tacks here: If HOA's percentage for homes with a resident 55+ is currently 90%, do you wish to sue? Or have your attorney send another letter?

Do you know how hard it is for a HOA, that has one way or another okayed a home with no residents 55+, to kick out the residents?

David, thank you for the clarification. That makes perfect sense now.

Ellen,
I wasn’t asking how to amend our CC&Rs, I was just confused Cathy’s comment, “…if you're going to be amending your governing documents…”

I had the exact same reaction to that I.e. section as you. All this time I thought that statement was providing the HOPA rules our community was following, “that is,” at least 80 percent of homes must be 55 and over. To me, that meant 80 percent. But now I understand it could also be interpreted as a statement to simply establish the minimum requirements. It’s probably also good to include this information somewhere for new home owners who have never lived in a 55+ community before. This very important interpretation all seems to hinge on that tiny little phrase, “all Dwelling Units.” Like I stated in my original post, this whole section is misleading. I still contend that if the phrase “all Dwelling Units” is to be interpreted as 100 percent, I believe that sentence is still incorrect since the Fair Housing Act does not require 100 percent of homes to be occupied by at least one person 55 and over to be in compliance.

I cannot find anywhere else in our governing documents that refers to 100 percent of homes being required to have at least one person 55 and older. I realize these documents don’t hold any weight, but the only other documents where this is stated is in previous Survey Reports: “In compliance with HOPA, [our HOA] requires that 100 percent of the occupied titled homes be occupied by a person 55 years of age or older.” I thought it was very odd that the Board did not want me to see any of these reports. They refused to provide copies until they received my attorney’s letter. They’ve revised that statement in the most recent survey report and removed the “100 percent” phrase. It now just states the same thing as our CC&Rs, “all Dwelling Units.”

I don’t plan to sue my neighbors or anyone else, and my budget for hiring attorneys was depleted long ago. If only the Board will cooperate (my expectations are low), my goal is to get clarification on this very important issue so I’ll know how to market my home when it’s time to sell. This is also beneficial to other homeowners, just like my efforts to get the age verification issue resolved. If the Board does not respond, maybe I’ll market my home to potential buyers under 55 and if someone under 55 buys, it can play out from there. I don’t know!

Thanks, everyone, for your insights.

All excellent points. It will be my main goal to convince the Board to clarify that entire section and make sure our policy is clearly defined: Either 100 percent or 80 percent occupancy.

It sounds as if you've already scored a big win, in getting the board to realize they have not been conducting the proper age survey.

I am curious, are there currently any homes with no 55+ resident? Are there any homes with children under the age of 18?

Thanks, Ellen. That's an excellent point about the Board not being qualified to interpret things. I guess it would be just another opinion. I'll approach it from other homeowners instead and see what happens. Maybe no one else cares.

THANK YOU BOTH for recognizing the importance of my efforts on the age verification process. It was an expensive one! Before I hired my attorney, I actually approached a few other homeowners about the issue, and no one seemed to think it was important (head-in-the-sand scenario), so I had to tackle it on my own. I agree that I could have prevented the HOA Board and possibly individual board members from getting sued. I had emailed them all the HOPA regulations, so they were aware of the requirements. They would have been in trouble by knowingly ignoring Federal law. I could also have chosen to simply ignore the issue, and the community would have eventually lost their 55+ status. I selfishly didn't want a bunch of teenagers moving in next door to me, so I won too.

Thanks again for all your help.