ammendment change

Started by LaverneB • 14 replies • 1702 views

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LaverneB (Florida)
Posts: 129

Posted:

OK i need you all again. We are changing a by-laws to read you must be 55 to buy a home where i live. The ballots have been sent out. Is it 33 1/3 or 30% I live in Florida and there seems to be confusing info.Where can I find a statue on this what section. We are a 55+ single family home community already, but any age can buy in here just not live here. Now it will read simply you can not buy unless you are 55......Thanks

PaulM (Pennsylvania)
Posts: 1,347

Posted:

LaverneB: I believe you are wanting to change the Declaration portion, not the Bylaws, since this is a direct change to the plan of the community itself, and who can purchase. IF you find that it must be an amendment to the Declaration, you may require most, if not 100%, of membership to vote yes to pass.

I would suggest you confer with an attorney, and/or your local municipal office to learn the rules/laws governing a community in your state requiring all buyers to be age 55 and older.

Honestly, you may be shooting yourself in the foot with the present RE market as it is. But, if the majority of owners/residents want no one purchasing unless they are 55 yrs. old, then they should also be willing to pay an attorney to make the appropriate changes and legally file them.

Keep us in the loop on your progress.

MikeC7 (Florida)
Posts: 4

Posted:

First of all;Florida statute 723 governs HOAs etc. There is no such animal as a 55+ community. It has declared illegal and discriminatory. Any communtiy so deemed must have a population of 80% over 55 no dependents living on site and the other 40% over 40 no dependents living at home unless deemed disabled. Your association by-laws will dictate how changes are made. Do a little internet research.

Mike

DonnaS (Tennessee)
Posts: 5,671

Posted:

Mike,

The Florida Statutes 723 governs Mobile Home Parks, just to clear that up. Statutes 720 are HOA's and 718 are Condo regulations. ALL NOT FOR PROFIT associations, including all of the previous and are what all of our Articles of Inc. are covered under 617, the FLORIDA NOT FOR PROFIT STATUTES.

The Housing Laws for Senior Americans Act has the 55+ laws and allowences. Because this is a FEDERAL LAW, it has precedence over any State and local laws. You must be aware of the heirarchy of laws. The Federal laws trump any State, County and Local laws and that includes your own association documents.

An association can require that any association be comprised of members being 55+ in age. The 20% number from the Fed Govt. It says that NO COMMUNITY WITH A 55+ DESIGNATION MAY ALLOW MORE THAT 20% OF THE RESIDENTS TO EXCEED 55 YEARS IN AGE OR THEIR DESIGNATION WILL BE LOST.

We have discussed on this site, several times, the advantages or disadvantages of limiting an association to having every member restricted to 55 years or older. That issue is very much up for discussion.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Be careful when claiming that federal law trumps state law. It depends upon how the the laws are worded. A higher level law only trumps a lower level law when the two laws CONFLICT with each other. For example, if federal law says that AT LEAST 80% of the people must be 55 or over, then state laws or declarations can be more stringent, but not less so. For example, state law or declarations could require that 90% must be 55 or over, because that still satisfies the federal requirement of being AT LEAST 80%.

Here, where we live, the local (town) ordnance requires that ALL units must have at least one person who is 55 or over living there (with certain exceptions). That meets the federal law as well, so it's all perfectly legal.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Bruce,
That is correct. Any State or local laws may not conflict with the Federal laws and if so, the Federal law has the precident unless the State wants to fight it. It can happen but the 55+ law is in the Fair Housing Act under Housing for Older Americans which sets minimum requirements.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Donna,

As an FYI - Here is a quote from the federal Fair Housing Act:

-----------

"(2) As used in this section "housing for older persons" means housing --

(A) provided under any State or Federal program that the Secretary determines is specifically designed and operated to assist elderly persons (as defined in the State or Federal program); or
(B) intended for, and solely occupied by, persons 62 years of age or older; or

(C) intended and operated for occupancy by persons 55 years of age or older, and--

(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older; "

-----------

Note that the last paragraph says "AT LEAST 80 PERCENT". Thus, any law or CCR etc. that specifies a number greater than 80% complies with the federal requirement of being AT LEAST 80%

My concern was with your statement that "NO COMMUNITY WITH A 55+ DESIGNATION MAY ALLOW MORE THAT 20% OF THE RESIDENTS TO EXCEED 55 YEARS IN AGE OR THEIR DESIGNATION WILL BE LOST." It is incorrect as stated. I think you understand the Fair Housing Act, but I think what you said is not what you meant.

First, the law applies to OCCUPIED UNITS and not to RESIDENTS. Suppose there's a development with 100 units, with two persons living in each unit. Thus, there are 200 residents. Suppose that the FHA requirement is just met and 80% of the units have AT LEAST one person living there who is 55+. That's at least 80 people who are 55+ and let's assume the other 120 people are not. In this case, only 80 out of 200 RESIDENTS are 55+ (only 40% of the residents), but the FHA requirement of 80% of the occupied units is met. Also, according to the way you worded your statement, "NO COMMUNITY WITH A 55+ DESIGNATION MAY ALLOW MORE THAT 20% OF THE RESIDENTS TO EXCEED 55 YEARS IN AGE OR THEIR DESIGNATION WILL BE LOST.", then, using your statement, with 200 residents there can't be more than 20% of the 200 people (40 people) who are permitted to be over 55. That doesn't even satisfy the FHA requirement because there's no way to put 40 people into 80 units.

As I said. I think I know what you meant; you just said it backwards.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Bruce,
OOPS!!!--How about no more than 20% may be "UNDER" 55 years You are right. I knew but did not straighten out my dislexia.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Donna,

Understand. Our Declaration once had exactly the same error in it.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Oh, By the way Bruce,

Thanks for not "jumping all over" the mistake. Sometimes, a few get all aggressive and belittle a post or reply. That is really not the way to handle a mistake. I appreciate you pointing it out to me.
Donna

LaverneB (Florida)
Posts: 129

Posted:

OK thank you all for the in-put. All is going good with the voteing and will let you know when it goes through....

MaryA1 (Arizona)
Posts: 7,043

Posted:

Whoa!!! It seems everyone got caught up in defining what an age restricted community is. Renae said her assn want's to prohibit anyone from BUYING a unit unless they are age 55 or over. Would that be legal? Isn't that age discrimination?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Good point: what does "over 55 mean"? - is it an Ownership or Residency requirements? Each category has its own legal guidelines.

Just Google "over 55 community laws" and you will get several sites about both of the the issues.

(Pay special attention to the over 55 - PURCHASE restrictions that are now being reversed or re-considered, due to the economy)

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Mary,

I don't think it was Renae; I think it was Laverne who asked the original question.

According to the federal Fair Housing Act, if it's an age-restricted community as defined in the act (at least 80% of the occupied units have at least one occupant who is age 55 or over), then no, it is not illegal to require that when purchasing a home, at least one of the occupants will be age 55 or over. Proof of age (driver's license, birth certificate) must be shown at the time of purchase. Furthermore, age-restricted communities must conduct a survey of their community every two years to insure that FHA requirements are met in order to maintain their status as an age-restricted community.

If the community does NOT have legal status as an age-restricted community, then, yes, it would be considered age discrimination to require a person to be of some minimum age.

Laverne states that she already lives in an age-restricted community. Assuming that it meets FHA requirements, the only requirement concerns who OCCUPIES (lives in) a unit; not who owns or BUYS a unit. Since it is normally assumed that a buyer will be the person who lives in the unit, imposing such a restriction on the buyer is not unusual. However, some individuals may buy a property as an investment, intending to lease it to someone who will occupy it. Thus, for an age-restricted community, imposing a restriction on a buyer that at least one person living in the unit be 55 or over would not be illegal. However, the buyer himself or herself would not be required to be 55 or over.

We have a similar situation right in our own age-restricted community. We have one unit that was purchased by an individual who is under 55. However, the unit is occupied by the individual's parents, both of whom are over 55.

In summary, an age restriction can only legally be imposed on the OCCUPANT; not on the BUYER. Now, can Laverne's association amend their bylaws to place such an age restriction on the buyer? Of course they can, but it would be a waste of time because they can't enforce it.

By the way, when you violate the law, you don't necessarily have to worry about civil suits. The person who is aggrieved by the violation merely has to file a complaint with the appropriate governmental authority.

SusanW1 (Michigan)
Posts: 5,202

Posted:

There CAN be OWNER restrictions IF the complex meets Federal guidelines for allowing a certain percentage for LOW INCOME ownership. (That's another can of worms)

But, as I pointed out, these restrictions are back-firing on owners, who can't sell in this economy.

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