This week’s column was written by our firm’s associate Michael Tarwater, Jr.
Q. I am an owner in a townhome association. We are interested in becoming a 55+ community. We understand some of the requirements but not all of them. How would we go about changing our community from a townhome association to an age-restricted townhome association? What are some of the hurdles we would face?
A. A 55 and older community is a type of community that falls under Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act) and the Housing for Older Persons Act (HOPA). HOPA provides guidelines whereby housing communities—typically condominiums or HOAs—may market themselves as adult communities.
The guidelines require (1) that 80 percent of the units or homes have at least one person living there who is older than 55; (2) that rules be published in the community which demonstrate the intent to provide housing for persons 55 and older; and (3) age verification showing that at least 80 percent of the houses have at least one occupant who is older than 55.
The key point, in addition to the 80/20 rule, is how the community holds itself out to others. They need to say, in effect, “we are community for those 55 and older and we use age verification to continue to maintain our exempt status under the Fair Housing Act.” A community should survey itself every two years to verify that it’s compliant. Failure to do so may show an intent to abandon its exempt status.
To become an age-restricted community, the association would first need to look to its declaration of restrictive covenants to see if and how it may be amended. If the declaration allows for an amendment, and assuming all the other requirements are met, it should be possible to transform the community into an age-restricted community. The guidelines required by HOPA would also be written into the amended declaration. Optional guidelines in terms of minimum age of residents and visitors may also be included at this time. This would be a good time to update the declaration in other areas as well.
Once the draft amendment to the declaration is prepared, the board of directors would mail it along with an annual or special meeting notice to all owners. The amendment would then be voted on by the community. The required percentage to pass the amendment depends on the governing documents, but typically it is between 67 and 75 percent.
If the amendment passes, the amended declaration would then be recorded in the county registry where the association is located and the association would begin holding itself out as an age-restricted community. One big caveat is the association must already meet the 80/20 requirement prior to amending its declaration.
HOPA is a good law in that it allows an exception to the Fair Housing Act. However, communities need to be careful before going down this road. By marketing yourself as an adult community, you are eliminating a substantial number of potential buyers of homes. However, if your community already meets the 80/20 guideline, turning yourself into an age-restricted community could be a good idea, in that all the residents tend to be interested in common goals and likewise can build a community around that.
Charlotte attorney Michael Hunter represents community and condominium associations for the firm of Horack Talley. Email questions to firstname.lastname@example.org. Not every question receives a reply. Find his blog at www.CarolinaCommonElements.com.