Q: I have a question on people moving into a “55 Plus Park” at age 55 or older. Can I later give the home to a younger relative with children? (G.A., via e-mail)
A: The federal Fair Housing Amendments Act of 1988, which became effective in 1989, prohibits discrimination in the terms and conditions of housing based on “familial status,” which basically means having children. Many states have similar laws. For example, Chapter 760 of the Florida Statutes is the Florida Statute on the subject.
The federal Housing for Older Persons Act, established in 1995, creates various exceptions to the 1989 law, including exceptions for communities that operate as “55 or over” housing, which is relatively common in Florida. Generally, to be classified as a “55 and over” community: (1) at least 80 percent of the occupied units must be occupied by at least one person aged 55 or over; and (2) the association must publish and adhere to policies and procedures demonstrating an intent to provide housing for persons 55 years of age or older; and (3) the association must engage in age verification procedures designed to ensure that occupancy in the community complies with the law.
Most communities’ “policies and procedures” which establish “55 and over” status are found in a deed restriction that will address your question. The deed restriction is most often found in a declaration of condominium, a homeowners’ association declaration of covenants, or cooperative bylaws or proprietary lease. Ideally, the restriction will specifically address the “20 percent cushion.” If the document is written as a “set aside clause,” you would be able to transfer to a family with children who could occupy the unit as long as the remainder of the park meets the 80 percent threshold. Conversely, if the 20 percent cushion is written as a “hardship clause,” you would likely not be able to do so.
The vast majority of restrictions I see treat the “20 percent cushion” as a “hardship clause” and not a “set aside.” Hardship clauses are designed to allow the association to permit exceptions when most people would agree that is desirable to do so. For example, if a 62 year old age qualifying spouse dies and is survived by his or her 53 year old spouse, no one would suggest that the 53 year old should be removed from the community. Other common scenarios involving hardship exceptions relate to inheritances and use by older adult children who may not have yet reached age 55.
It is important to remember that, prior to 1989 “adults only” housing in Florida was relatively common. A common deed restriction would, for example, provide that no child under age 14 could reside in the community. The 1989 federal statute made this illegal.The exceptions created by Congress, including the “55 and over exception,” are strictly construed as they are exceptions to anti-discrimination laws. It is important that a board take stock of this issue periodically and ensure with counsel that the association is in compliance with the law.
Among the steps required to comply is the requirement for a bi-annual census update/age verification process to ensure that the community is compliant with the 80 percent occupancy requirement.
Q: Can a condominium board enforce a rule that only those who signed up beforehand can speak or ask questions at a board meeting? (L.S., via e-mail)
A: I would say yes, although the courts have not addressed this issue to my knowledge.
The law grants owners the right to speak at board meetings, and further provides that such rights are subject to the board’s right to adopt reasonable rules regarding the “frequency, duration, and manner” of owner statements.
While “reasonableness” is in the eyes of the beholder, I would note that many government bodies, such as local commissions and councils, require those who wish to speak to sign up in advance.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.