Some associations believe they qualify as a "55 and Older" community by virtue of nothing more than a sign at the entrance and a long-standing reputation for being a retirement community.
In fact, it takes more than that to allow a community to purposefully exclude younger purchasers and families pursuant to the Fair Housing Amendments Act. Recognizing that communities designed for the specific needs and desires of older citizens are highly desired by many especially in South Florida, the law does allow these types of communities to exist but only within certain guidelines.
A community must have the proper language in its governing documents, specifically in its Declaration of Condominium or its Declaration of Covenants and Restrictions. Antiquated language which simply says no children younger than 16 is no longer enforceable. The "magic language" must reflect that each unit or home must be occupied by at least one occupant age 55 or older in order to exclude children younger than 18 from living in the residence.
It is important to remember that the 20% cushion allowed under the law is really designed for younger surviving spouses and adult children who inherit their parents' units. Despite pressure from realtors to the contrary, it is not intended to be used for younger purchasers with no prior involvement in the community.
In addition, the community must conduct a census at least every 2 years to collect proof that at least 80% of the homes are occupied by at least one occupant age 55 or older. If the community does not meet the 80% threshold or does not have the proper age restriction in its governing documents, its ability to enforce its age restriction vanishes. Moreover, once that right has vanished, if the association continues to have the age restriction language in its documents or leaves the sign out front indicating that the community is a "55 and Older" community, those actions could constitute de facto discrimination since potential younger purchasers could decide to not even look at the community based on those misrepresentations.
Many older individuals base their purchase decision on the fact that they will retire in a community with their peers. It is important for boards to ensure that the age restrictions upon which these members are relying are safely maintained. If you are currently unsure about the validity of your community's status as Housing for Older Persons, please contact your association attorney to discuss the matter.
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