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children in an adult community

Started by SheilaM2 • 21 replies • 1719 views

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SheilaM2 (Florida)
Posts: 10
Posted:
I live in a gated community in Delray Beach, Florida. When purchasing, I was told it was an adult community 55 and over. Now, the neighbor who has been living there for almost 10 years, first with his father as owner and then his father gave him the property and has since died. Now, he has married a non-citizen with four young children and bought them to live here in a two bedroom house. The association sued him and the court found for the defendant. Apparently, the documents were not in order, or he was grand-fathered in. What recourse do I have if I have trouble in the future with the children. They had been found to have broken in the neighbor's house on the otherside, and he once called the police on me for being on common area. I think I have some recourse.
GlenL (Ohio)
Posts: 5,491
Posted:
If they violate the law call the police, if they violate the CC&R's notify the PM or Board. But they are your neighbors so unless it becomes untenable, be neighborly. Remember the "Golden Rule"? Treat others as you wish to be treated, it works most of the time and don't forget what it is like to be a kid especially living someplace not designed for them.
Studies show that 5 out of 4 people have problems with fractions
MicheleD (Kentucky)
Posts: 4,491
Posted:
If the court found for the resident with the kids, then you really have no recourse against them in terms of being under 55 and living in the community.

However, you have every recourse to contact the police when you see them doing something unlawful, such as property damage or breaking and entering.

KirkW1 (Texas)
Posts: 1,665
Posted:
I would suggest that you tread very lightly to avoid being sued for harassment. IF your post is any indication you are looking for a way to get at someone who you blame for ruining your paradise.

A 55 plus community in itself does not promise that every resident will be over the age of 55. In reality it only means that the vast majority of the units will have at least one resident over the age of 55. Others can give you the percentages.

As for the kid breaking into a home, unless there has been a guilty plea or conviction, you knowledge has no legal standing. In fact, your stating it becomes evidence that you have it in for the family.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Shelia,
First, I would want to know exactly how and why the court rendered what decisions. Ask you BOD or m/c to see the court papers. They should be available at court house also. Then I would go before the board with any questions I had and find out why your documents that you signed are no longer valid. If the BOD is responsible in part and goofed something up to nullify your documents, I would want to know that. I would also ask the Board for a written report about the present state of portion of your documents that require an adult community.

As Glen says be neighborly, I doubt these folks are out to get you personally, but you also have rights and were offered certain rights if you agreed to certain terms, that's legal also.
SheilaM2 (Florida)
Posts: 10
Posted:
I am a 70 year old mother and grandmother and treat others as i would like to be treated -- with respect. In all fairness, this is not a community for children. Children like to have friends, go out on bikes, etc. These children NEVER go outside the house. It is not fair to the children to keep them confined and in all fairness to be amongst oldies! By staying at the house with four young children is not being fair to them. I am always courteous to my neighbor, even though he called the police for no reason. I just do not want to have problems with noise, etc from children close by when I purchased in an adult community. I used to have six children all summer long when my son was growing up as he was an only child. I had students from the language school. I have my grand-daughter with me occasionally over a week-end and she always brings a friend. I live entirely alone and just do not want any problems when i am not at home or have noisy children around. Parents should be more attentive to their children instead of letting them run wild. I do things with my grand-daughter, i.e. take her to Morikama, etc. I always plan something when we are together, not just in the house all day.
SheilaM2 (Florida)
Posts: 10
Posted:
I am going to ask at the next board meeting. I want to know why the attorney filed a 108 page complaint and yet did not check the documents to make sure that we were legal, did not send any discovery to the defendant and simply set it for trial. The neighbor told me that he knew the documents were not in order and that he was going to win. I have nothing against the neighbor, except he called the police on me for no reason, but I simply let it go and do speak to him when nobody else does because I live next door and do not any problems as I live alone. I am going to look at the court documents, but the FJ simply said after reviewing the documents the court finds for the defendant. He could possibly have been grandfathered in, that is another issue as he was there prior to filing the over 55 docouments. As I stated in another response, I am neighborly to him and his wife and her four children.
SheilaM2 (Florida)
Posts: 10
Posted:
I am not looking at anyone to blame for ruining my paradise. I am a 70 year old grandmother, been there looking after children, etc., and simply do not want to have annoying children around me. Well behaved and respectful is another matter. I do not have it in for the neighbors, but just want to be careful as I am entirely alone and in this day and age one has to be mindful of what is going on.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Sheila,

55+ communities fall under the HUD jurisdiction. Seeing that this has already gone before the court system and they ruled that this situation is within the Housing For Older Americans Act, I would say that the only thing that you can do as a community is to fine tune who can live within your community thru amendments to your CC&Rs. You can amend those docs to state that no one under the age of 18 can reside in the community for more than so many days. You can pass amendments limiting the amount of humans housed within units. Yes, it is not an ideal situation for young kids to live in these types of communities. But history usually says that they won't stay long either because of the community not being kid friendly.
EllenS1 (Florida)
Posts: 1,148
Posted:
Shelia,

Which is it? "These children NEVER go outside" or "Parents should be more attentive to their children instead of letting them run wild"?
KevinK7 (Florida)
Posts: 1,343
Posted:
I live in a neighborhood in Central Florida that once was considered a 55+ community. There was an amendment in the covenants that concerned restrictive sale or lease to persons age 55 or over. That amendment was invalidated by the Fair Housing Act of 1988 and by agreement with the U.S. Justice Department.

I believe the ruling was issued by the Supreme Court, or so I was told by some of my neighbors. My grandmother had purchased this house in the early nineties and it was still considered a 55+ community, but since then, the demographic has changed.
SusanW1 (Michigan)
Posts: 5,202
Posted:
Sheila - how do you know it was THAT neighbor who called the police with a complaint? Police around here will never tell you WHO called in the complaint, only that one was called in. They must follow up on all complaints.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Kevin,
Some of your post is confusing to me. You said that you were once a 55+ community. What are you now? An amendment to the covenants said what? What was the association trying to do?

You said that the ruling was issued by the Supreme Court? Which court, the U.S or State?

A 55+ community is registered as a 55+ community and remains so unless changed by the membership which then has to be unregistered to the State and HUD.
KevinK7 (Florida)
Posts: 1,343
Posted:
Looking at my information,

the C&R state:

Article II, Section 2: Adult Community Restrictions

In recognition of the fact that the Property is being developed for the enjoyment, comfort, convenience and accommodation of adult persons, occupancy of each and every Dwelling Unit shall be and is hereby restricted to adults with whom no dependent children under sixteen (16) years of age reside.

I believe these were written in 1978.

I believe in 1996, they were checked and modified because of a court ruling. According to a document supplied to me by the HOA with my C&Rs, it states:

An Amendment was registered on Register No. 3208939, March 13, 2:18 pm, 1989 or 4062 page 4854 Public Records, Orange County, FL. This amendment concerned restrictive sale or lease to persons age 55 or over. This amendment and Article II, Section 2, has been invalidated by the Fair Housing Act of 1988 and by agreement with the U.S. Justice Department.

According to a news article, a land-mark case in 1989 made it to the U.S. Supreme Court and the "laws regarding 55-plus communities were changed".
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Let me throw the following into the mix.

In an quick and dirty Lexis search, I could not find a US Supreme Court case of 1988 or 1989 that dealt with age discrimination in housing or 55 plus housing. The "landmark" case of that year dealt with eviction from public housing.

And, by the way, the 1988 law is entitled, "The Fair Housing Act Amendments of 1988" (FHAA) which builds upon the "Fair Housing Act" of 1968. (FHA) The statutes were further amended in 1994 and 1998.

I did find and quickly review an article from the St. John's Law Review (1999), "The Fair Housing Act amendments and age restrictive covenants in condominiums and cooperatives." Here is a pertinent quotation:
    There were several purposes recognized by Congress in allowing 20% of the units to be occupied solely by persons under the age of 55. One purpose was to protect those persons younger than 55 when a spouse or other member of the household over the age of 55 dies or leaves the unit. See Implementation of the Fair Housing Act of 1988, 54 Fed. Reg. 3232, 3255 (1989) (considering the legislative history of the provision and reviewing the opinions of commentators).

    It also protects incoming households, including, for example, those under the age of 55 who inherit a condominium from a loved one. See id. However, practical concerns preclude an owner from setting aside exactly 20% of the units. See id. Were an owner to attempt this, a significant risk of losing the exemption would arise if the over-55 resident in one of the units died, leaving only person(s) under the age of 55. See id.


Keep in mind that is is commentary, not statute or case law, and I have no special expertise in this area. I am reporting what I have found.

What this suggests is that a person buying into an 55+ community only has a reasonable expectation that about 80 percent of the units will be occupied by at least one person over the age of 55. Such a purchaser should fully expect that a number of units may be owned and occupied by persons under 55 years of age, including by children.
DonnaS (Tennessee)
Posts: 5,671
Posted:

George,
Thank You for clarifying that for all of us. I have 2, 55+ communities in S. Florida and they have been run quite well with these issues not having ever been a problem. But one never know when this can come up and it is good to know where to find answers to these questions. Again, Thanks!
MaryA1 (Arizona)
Posts: 7,043
Posted:
George,

What you say is true, but only IF the gov. docs. do not specifically state "all residents must be age 55 or over". In other words, the declaration can be more restrictive than HOPA. Note the following from a Q&A concerning the final rule implementing the Housing for Older Persons Act of 1995 (HOPA):

Question 16: May a housing facility/community impose an age limitation more restrictive than that required by HOPA and qualify for the 55 or older exemption?

Answer: Yes. For example, the housing facility/community may require that at least 80% of the units be occupied by at least one person 60 years of age or older. The housing facility/community may require that 100% of the units are occupied by at least one person 55 years of age or older, or that 80% of the units be occupied exlusively by persons aged 55 or older. However, the facility/community should review other state and local laws, including fair housing laws that may prohibit discrimination based on age, before establihsing policies and procedures restricting occupancy based on age, or affecting survivors' rights to property, that are not covered under HOPA.

DonnaS (Tennessee)
Posts: 5,671
Posted:

Just to add another piece to this puzzle, the Fair Housing Act has an exemption to the rules for allowing persons under the age of 55 to reside in a 55+ community.

My documents read that --"(a) A community is exempt IF at least 80% of the units are occupied by at least (1) person 55 years of age or older per unit: (b)significant facilities and services specifically designed to meet the physical or social needs of older persons are available to the community and (c) the publication of, and adherence to policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older (hereinafter collectively referred to as the Requirements For Exemption)."

"Therefore for so long as such provisions of the Fair Housing Act are in effect, (1) at least one occupant in each dwelling unit in W**** S**** must be at least 55 years or older, except as herein set forth."

Board Discretion: The requirements for exemption contemplate that up to 20% of the units MAY be occupied by persons all of whom may be under the age of 55 without loss of exemption. (Then it goes on to say what the Board has set as their criteria for under 55 residency) There is a paragraph prohibiting any children under the age of 18 except for 60 days per year. This document was written by Becker and Polikoff and approved by the membership.
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
I am going to defer to others that have far more expertise and knowledge about 55+ housing laws and regulations than I. This is not an area in which I claim any special knowledge or expertise to contribute to the discussion. And I am certainly not up to date on amendments and regulations.

For anyone interested here is the link to the Federal Register final regulations on the Housing for Older Persons Act (I was taken off track in searching for it before, since it had been referred to as the "Housing for Older Americans Act" which did not turn up in my Lexis search.)

http://www.hud.gov/offices/fheo/seniors/hopa.pdf

See in particular, "PART 100—DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT" at page 16329 ff. Apparently, children may be allowed or not in 55+ communities. And families with children living in the community when it is certified as 55+ may not be evicted.

KevinK7 (Florida)
Posts: 1,343
Posted:
Here is a newspaper article that mentions the case (about halfway in the article).

http://www.southwestorlandobulletin.com/directorytext.asp?id=2098

I do not know if this was the original case (it is dated 1993), but here is a link to the case, that made it to the United States Court of Appeals, Eleventh Circuit.

http://bulk.resource.org/courts.gov/c/F2/980/980.F2d.1402.91-4133.html

I hope this helps. I am not that familiar with the events that led to the change in my neighborhood's documents, for I have only now started researching them.
SheilaM2 (Florida)
Posts: 10
Posted:
Children should be allowed to go outside with adult supervision if going to the pool, etc., or allowed to play outside. It is not fair to the children to keep them confined. Parents should be more attentive as to what children are doing and where they are when not in the house.
SheilaM2 (Florida)
Posts: 10
Posted:
Apparently it is distcrimination to say no children under 18 which was in our oriignal bylaws. Then THEY WERE amended to say 55 and over. Yet the court ruled in favor of the defendant.

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