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55 plus

Started by MichaelJ8 • 21 replies • 2149 views

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MichaelJ8 (Illinois)
Posts: 113
Posted:
The declaration states 55 and over. The developers literature states 50. The developer stated that he was going to ignore the 55 and over. My question is, what can happen, if anything,, if he sells to someone under 55 and they occupy the unit? I personally would welcome some younger people in hopes they would become officers, but that is my opinion only.
BradP (Kansas)
Posts: 2,640
Posted:
if your declaration says 55 then 55 is the age...if you are controlled by the developer you have two options, 1) wait till it is turned over to homeowners to act or press the issue in court.
MichaelJ8 (Illinois)
Posts: 113
Posted:
i forgot to state the we are not controlled by the developer. he has turned it over to us. He has about 17 units he wants to build and sell.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By MichaelJ8 on 11/25/2011 9:15 AM
i forgot to state the we are not controlled by the developer. he has turned it over to us. He has about 17 units he wants to build and sell.

If your CCRs state 55 or over, then I would say the developer could be guilty of false and misleading advertising.
TimB4 (Tennessee)
Posts: 21,047
Posted:
Quote:
Posted By MichaelJ8 on 11/25/2011 7:45 AM
My question is, what can happen, if anything,, if he sells to someone under 55 and they occupy the unit?

That would be an issue between the buyer and the seller.

It would not be an issue between the buyer and HOA except for the enforcement of the covenants.

MichaelJ8 (Illinois)
Posts: 113
Posted:
If the developer sells a unit and is half way thru the construction and the association finds out that the future owners are under 55 what recourse does the association have? (I know we would need a lawyer, but what would we ask for? Stop construction, refund their money, etc) It has not happened yet but I think i see some writing on the wall.
TimB4 (Tennessee)
Posts: 21,047
Posted:
I think you would ask for enforcement of the covenants.
I also think you could request an injunction on the developer to fully disclose the age requirement.

your attorney should know how to ask for what you want. The question to you will be, what is it that you want/require to make you whole.
LarryB13 (Arizona)
Posts: 4,099
Posted:
My recommendation to any 55+ community is to post a sign (or signs) at the entry points. Just something simple like "Welcome to Sunset Gardens, a 55+ community." In the matter at hand, you cannot control what the developer or other seller tells potential buyers but you can and should convey the correct information to all who enter the property.
JohnB26 (South Carolina)
Posts: 1,569
Posted:
the posting of a sign declaring a 55+ community is REQUIRED by HUD
HalP1 (Massachusetts)
Posts: 4
Posted:
posting a sign that you are a 55+ community could be an invitation for thieves.
DavidW5 (North Carolina)
Posts: 565
Posted:
Quote:
Posted By JohnB26 on 11/27/2011 6:52 AM
the posting of a sign declaring a 55+ community is REQUIRED by HUD

John,

Can you please provide the citation for this? Our 55+ community in Va. has no such sign. If it is, indeed required, I want to provide the information to our board.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By HalP1 on 11/27/2011 3:58 PM
posting a sign that you are a 55+ community could be an invitation for thieves.

Your local thieves are most likely already aware of your condo. All the gray-haired folks with walkers and oxygen tanks are a dead giveaway.

Larry
Age: North side of 55.
JohnB26 (South Carolina)
Posts: 1,569
Posted:
Posted By JohnB26 on 11/27/2011 6:52 AM
the posting of a sign declaring a 55+ community is REQUIRED by HUD

John,

Can you please provide the citation for this? Our 55+ community in Va. has no such sign. If it is, indeed required, I want to provide the information to our board.


As per my HOA's attorney:

Due to the staggering cost of defending a discrimination
claim, or even a HUD investigation, every
“55 and over” community should have its legal
counsel periodically audit its compliance with the
laws. The following is a brief checklist of compliance
requirements.

Periodic age verification procedures: Even for
communities which have long held themselves out
as “55 and over” communities, HUD’s regulations
require periodic censuses and age verification. In
general, age verification requires the ability to
prove a particular occupant’s age through reliable
means. Typically, photographic identification with
birth dates (such as drivers’ licenses) are the best
source. By law, the census must be updated at least
every two years, and needs to be adjusted in connection
with every change in a unit’s occupancy.

Policies and procedures: Associations should
make an effort to hold the community out as a “55
and over” community to the general public. Community
entry signs, letterhead, rental application
forms, and similar means by which the community
is held out to the public are all relevant.

Although there are many steps that must be taken
(and unfortunately, repeated) to attain age-restricted
status, failure to comply with the law can
definitely spoil your day.


As per HOPA 1995:

Question 3
What must a housing community or facility do to qualify for the 55 or older housing for older persons exemption?
Answer
In order to qualify for the exemption, the housing community/facility must satisfy each of the following requirements:
a) at least 80 percent of the occupied units must be occupied by at least one person 55 years of age or older per unit;
b) the owner or management of the housing facility/community must publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older; and
c) the facility/community must comply with rules issued by the Secretary for verification of occupancy through reliable surveys and affidavits.


Therefor:

Any prudent HOA would post the fact that it is 55+ at the entrance as the only practical means of avoiding potential (law)suits.
DavidW5 (North Carolina)
Posts: 565
Posted:
A suggestion from an attorney is pretty far from a "requirement". I think I will not bother our board with this issue.
EllieD (Vermont)
Posts: 446
Posted:
DavidW5,

Quickly scanning what JohnB26 posted “as per my HOA’s attorney” – all that information seems to be almost verbatim from the HUD pdf documents on the requirements for “Housing for Older Persons Act of 1995 (HOPA)”

If you are interested try these links:

http://hud.gov/offices/fheo/library/hopa_final.pdf

http://www.hud.gov/offices/fheo/library/hopa95.pdf

If they do not get you the pdf Documents - try using Google Advanced Search - and on the ”this exact wording or phrase line” TYPE IN: hud gov offices fheo library hopa95 pdf
LarryB13 (Arizona)
Posts: 4,099
Posted:
There appears to be no hard and fast "requirement" as such for signage. However, the following passage taken directly from http://hud.gov/offices/fheo/library/hopa_final.pdf indicates that signage is one factor that HUD uses to determine whether housing qualifies as 55+. Here is the relevant text:

24 CFR § 100.306 Intent to operate as housing
designed for persons who are 55 years of
age or older.
(a) In order for a housing facility or
community to qualify as housing
designed for persons who are 55 years
of age or older, it must publish and
adhere to policies and procedures that
demonstrate its intent to operate as
housing for persons 55 years of age or
older. The following factors, among
others, are considered relevant in
determining whether the housing
facility or community has complied
with this requirement:
(1) The manner in which the housing
facility or community is described to
prospective residents;
(2) Any advertising designed to attract
prospective residents;
(3) Lease provisions;
(4) Written rules, regulations,
covenants, deed or other restrictions;
(5) The maintenance and consistent
application of relevant procedures;
(6) Actual practices of the housing
facility or community; and
(7) Public posting in common areas of
statements describing the facility or
community as housing for persons 55
years of age or older. [emphasis added]
(b) Phrases such as ‘‘adult living’’,
‘‘adult community’’, or similar
statements in any written advertisement
or prospectus are not consistent with
the intent that the housing facility or
community intends to operate as
housing for persons 55 years of age or
older.
(c) If there is language in deed or
other community or facility documents
which is inconsistent with the intent to
provide housing for persons who are 55
years of age or older housing, HUD shall
consider documented evidence of a
good faith attempt to remove such
language in determining whether the
housing facility or community complies
with the requirements of this section in
conjunction with other evidence of
intent.
(d) A housing facility or community
may allow occupancy by families with
children as long as it meets the
requirements of §§ 100.305 and
100.306(a).
(Approved by the Office of Management and
Budget under control number 2529–0046)

DavidW, this is precisely the kind of issue you should bother your board with if you wish to remain a 55+ community.

MichaelJ8 (Illinois)
Posts: 113
Posted:
As I stated in the beginning the declaration states 55 and over but The developers literature states 50. I can assume that this would not meet HUD requirements. What does that mean to our association if we do not meet their requirements? I can see now that buying this condo may not have been a wise choice.
TimB4 (Tennessee)
Posts: 21,047
Posted:
Michael,

Just point out the mistake to the developer. Explain that failing to properly advertise what the deed restrictions say are a violation of HOPA and then give him a copy of that section of the law.

Then see what he does.

Tim
MichaelJ8 (Illinois)
Posts: 113
Posted:
Tim,
I will give him a copy but I can almost tell you what he will do with it. My question is, What are the penalties for not following the law?
TimB4 (Tennessee)
Posts: 21,047
Posted:
I would expect the worst penalties being one of two or a combination of both:

1) Lose your HOPA exemption
2) The need to refund the cost of the unit to the buyer.

Note: your Deed restrictions say 55 and older. Therefore, I think the Association is safe and any issues would be between a buyer and the seller.

LarryB13 (Arizona)
Posts: 4,099
Posted:
Michael:

You cannot control what the developer (or any other seller) tells prospective buyers and you know that the developer is misstating the minimum age. Therefore, it is even more important for you to do everything you can to make the correct minimum age known. You want to be sure that when the lawsuits start flying that they all land on the developer's doorstep and not yours. Unless you are willing to hire someone to stand guard 24/7 to verbally inform prospective buyers that the minimum age is 55 and not 50, signs (and lots of them) are your best bet. As it stands right now, the developer is misrepresenting the age limit, you know of his misrepresentation, and you have ratified the misrepresentation by remaining silent when the law requires you to make the truth known if you wish to remain a 55+ community.

Your original post stated that the developer's sales literature states the incorrect 50-year-old minimum age. That means a prospective buyer will have irrefutable evidence of the misrepresentation. This is far more compelling than, "I thought I heard the seller say . . ."

BTW, is the developer required to hold any sort of license? If so, I would complain to the licensing authority about the developer's knowing misrepresentation. This may or may not stop the developer but it will help cover your rear.
BarbaraB10 (California)
Posts: 117
Posted:
Check your documents to see if a separate "Senior Community 55+' sign is required on home for sale signs.

Some cities (municipal code) also require this additional sign in conjunction with a for sale sign in age restricted communities.

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