HOPA / 55+ Community opt out

Does anybody have experience of a 55+ HOA community opting out and becoming an all-age community?
I cannot find any references online and wanted to know what procedures would be required and if there are any regulatory hurdles to overcome.

There is no “opt out”. The community would have to amend its declaration which would require some form of a super majority vote of the owners. Most people who move to 55+ communities purposely and I doubt you will get the support make the changes.

Florida will treat an HOA that initially qualified for a 55+ exemption as a 55+ community but it has an 80/20 test rule on occupancy. The HOA is responsible for maintaining its qualification by determining that at least 80% of occupancy includes one person 55 yrs or older. Once the balance shifts and more than 20% of the occupants are under 55, it is automatically no longer a 55+ community and becomes an "all age or family community". Florida no longer requires HOA biannual updates of registrations and occupancy census. It's an honor system and is complaint driven.

This is not a problem until someone complains to HUD and can demonstrate some kind of damages. The declaration had better be bulletproof and consistent with HUD/HOPA law if there is a housing complaint based on age.

True. Anyone can file a HUD complaint and it will not cost a cent. It will be prosecuted if the investigation shows reasonable cause. The case can result in a sizeable damage and/or penalty award.

The proper way of "opting out" would be to amend your covenants.

... and the association and all owners.

If the covenant has been repeatedly violated for many years, such that for one thing, HOPA protections are no longer enforceable, then arguably the covenant has been abandoned and might no longer be enforceable.

If the covenant has been properly enforced over the years, then I agree a court might very well reject an amendment to remove this covenant as being "unreasonable," roughly for the reasons you tried to give.

"Vested right" is not the way I would describe land use covenants. I do not think the courts use this language either. For one thing, every Declaration I has includes an amendment clause. Believe me, courts have used amendment clauses to justify all manner of amendments, because the amendment clause gives buyers and owners notice that the covenants could change. However and as noted, huge changes/amendments are less likely to be enforced by the courts.

Strike this; foul on me. It appears some appeals courts do use this phrase with regard to land use covenants and their amendment. Search:

"vested right" "covenant" "association" "amendment" site:https://law.justia.com/cases/

Great post by someone who obviously knows a thing or two about contracts. Certainly covenants and contracts are not equivalent and you did an excellent outlining defining characteristics. I have always thought that functionally, covenants are a coercion contract that ties in to a purchase. I will try to find the case you cited and learn more.

My community was originally constructed as a land-owned campground and now is land-owned manufactured housing community. The original covenant was silent on age-restrictions as the community was not built as a retirement community but as a family campground. The covenants were later amended to have an age restriction. In my little world, this amendment was not properly enacted because it did not "amend" anything; it created a new covenant restriction after the fact. Despite that, it is age-restricted but it is a distinction without a difference since Florida allows an exception to the Fair Housing Act that allows 55+ communities to age restrict as long as the 80/20 rule is observed i.e. 80% occupancy by one person in the household is over 55. This is a constantly misunderstood concept and people get crazy if someone under 55 moves in.

But I digress. Covenants have been described as a promise to do or not to do something. HOA's sue homeowners who break covenants i.e. not pay assessments. I am unclear about how the 'covenants' lawsuit under these circumstances differs functionally from a contract breach. Perhaps you can help to explain. Thanks.

One is enforcing either a covenant or a contractual term. One goes to court for both. The difference is not significant in the least.

The law supersedes the Declaration. If the association is a corporation, its powers are subject to any limitations in the Articles of Incorporation.

If one is a member of the bar and arguing before the Supreme Court, there may be some finer points.

Otherwise enforcement of a covenant is too similar to enforcement of a contractual term to split hairs over. The fact is people come here all the time asking what they can do when an owner or director violates a covenant. The answer is:

Go to court to get the covenant enforced.

We disagree. If you post something to change my mind, I will respond further.

Nope, not accurate.

For California, Civil Code 4205 flatly states that where the AoI conflict with the Declaration, the Declaration controls.

The poster is in Florida but there may be similar provisions limiting the board's power.

TerriS6, you are posting grossly incorrect information about a HOA's powers under the law. The thread is derailed at present. If TerriS6 posts something that changes my mind, I will post back. Else I reject all else she/he says on this topic.

Nobody mentioned a conflict.

That has nothing to do with it being a 55 plus community. Our purpose is to maintain our lawn care. That is our HOA Purpose and responsibility.

A 55 age limits falls more along the lines of defining as a retirement community. One would know that a purchase there would not be for families with young children. There would not be a school bus route in that neighborhood.