Housing for older person restrictions should be enforced through legal action
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Dear Poliakoffs,
A friend lives in a 55+ deed-restricted community. The HOA there is not mandatory - so if you choose not to join the HOA, you cannot use the community pool or clubhouse, tennis courts, etc. Lately it is apparent they are not enforcing the 55+ status of the community, and several homes are being used by either children of the 55+ owner, or tenants.
The HOA does not have a lot of money for a lawyer, and the lawyer it hired has not made much progress. The owners whose kids live there say they never agreed to everyone living there having to be 55+ (although the signs are everywhere when you first drive into the community from any road, saying "55+, deed-restricted"). How can the HOA get rid of these people without it costing a fortune in legal fees? Is it possible?
Signed, K.R.
Dear K.R.,
There are a lot of moving parts in your question. My principal concern is that you describe the community as “deed restricted”; but then you say that membership the association is optional. I do wonder how the community can be both deed-restricted and optional. Wouldn’t that mean that any person who has not opted-in to the association is not governed by the deed restrictions? Or is it only membership in the association that is optional, but that every owner is in fact governed by the deed restrictions (this would be unusual—why would they include deed restrictions but not obligate owners to join the association and pay assessments?)
Ultimately, whether or not the community can be considered housing for older persons will depend on whether there are enforceable deed restrictions that govern all of the lots. Additionally, in order to qualify as housing for older persons (and to be excluded from the age-discrimination provisions of the Fair Housing Act), an association must periodically verify occupancy through owner surveys. To qualify as “housing for older persons”, at least 80 percent of the occupied units must be occupied by at least one person 55 years of age (or older). If the association does not conduct the verification surveys; or if they have done the surveys but the community no longer meets the requirements; then the community does not qualify as housing for older persons and it is not entitled to enforce the covenants restricting occupancy by children.
Let’s assume, however, that the community has conducted the required surveys; that it currently satisfies the requirements under the FHA; that the lots are all governed by the covenants (even though membership in the association is optional) and that all that is going on is that there are some lots violating the covenants. In that situation, the only way to enforce the covenants is through legal action. Yes, it’s expensive to enforce covenants, but it’s a necessary cost. In fact, if the association has been actively ignoring the 55+ covenants for many years, it may very well have waived its right to enforce them. These are all issues that the association’s attorney needs to evaluate. The fact that the association is voluntary, and not mandatory, greatly complicates matters (because, as you have pointed out, it likely does not have sufficient funds to properly enforce the restriction). I don’t see a great solution other than imploring like-minded owners to fund an enforcement effort; or for your friend to fund her own lawsuit against owners who are violating the restrictions.
Dear Poliakoffs,
I live in a ground-floor condominium. The unit above me is only occupied a few weeks a year. Twice we have had leaks in our master bathroom ceiling over our toilet emanating from his bathroom. He refuses to allow the property manager or a plumber access to his unit. Do I have any recourse?
Signed, K.R.
Dear K.R.,
How you handle this depends on whether repairing the leak is the owner’s responsibility, or the association’s responsibility. That will depend on your declaration of condominium. If it’s the association’s responsibility, they have an absolute right to enter the unit to make the repairs pursuant to the Condominium Act; and if the owner refuses, they can sue him to compel entry. If the leak is the owner’s repair responsibility, you or the association should send him a demand that he repair the leaking toilet, and if he does not, you can hold him responsible for the damage to your unit. You may benefit from hiring a lawyer to write an appropriate demand.
If the association isn’t sure whether the leak is an association or unit issue and it needs to investigate, I think it has the right to do so pursuant to the general access rights granted by the Condominium Act, as the Act permits the association to access units as may be needed to prevent damage to another unit. The association’s lawyer should send a strongly worded demand to the unit owner, and if he still refuses to allow entry, it can bring legal action to gain entry.
Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Email your questions to condocolumn@gmail.com. Please be sure to include your location.
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This article originally appeared on Florida Today: Housing for older person restrictions should be enforced through legal action
