Feb 05 2017

Is there any leeway in over-55 community rules?

By Meredith Caruso

Feb. 6, 2017 – While the Fair Housing Act prohibits discrimination against protected classes, including families with children under the age of 18, federal guidelines permit exemptions for communities designed for older adults. The primary rule, among other things, is that the community’s board must prove that at least one resident in at least 80 percent of the units or properties is 55 or older.

This means a 55-plus community could still have residents younger than 55 or even families with small children in up to 20 percent of the properties. But the key word here is “could.”

The Florida Realtors Legal Hotline gets many questions regarding housing for older persons and the “20 percent” provision. Frequently, the caller will say something like, “The association hasn’t used up their 20 percent, so they have to let my buyer/tenant in.”

That is not the case. While a community has an option to allow up to 20 percent of the occupants to be younger than 55, they’re not required to do so. Many times, associations reserve their 20 percent so they can handle cases where an older resident passes away and the widow is under 55. Sometimes they need to hold space to accommodate people under the age of 55 who purchase residences at foreclosure sales.

It’s also important to note that the rules governing 55-plus communities focus on who is occupying and using a property – not who owns it. As such, adult children younger than 55 can purchase a home or condominium for their parents to enjoy, as long as the parents live in the residence and the association is otherwise complying with the requirements for its exemption.

 Qualifying for an exemption

To qualify for a Fair Housing Act exemption, an over-55 community’s board must prove:

  • At least one resident in at least 80 percent of the units or properties is 55 years or older
  • The community presents itself as “housing for older persons” in its marketing and controlling documents
  • The board filed the necessary paperwork for a 55-and-older exemption

Meredith Caruso is Manager of Member Legal Communications for Florida Realtors

© 2017 Florida Realtors®

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