Florida is home to hundreds, if not thousands, of 55 year old and over communities. A “55 and over” community is defined as housing that is intended and operated for occupancy by persons 55 years of age or older. As such, if a community meets specific requirements, as mandated under federal and state laws, it may restrict occupancy based upon age. Typically, the right to restrict occupancy based upon age is based upon precise wording contained within a community’s governing documents. It may have been originally drafted by the developer, or may have been added pursuant to an amendment voted in by the owners.
55 AND OVER COMMUNITY REQUIREMENTS
Despite the fact that a Florida community may have the proper wording in its governing documents, there are numerous other requirements a community association must follow in order to continue to be deemed a “55 and over community.”
1. At least 80% of the homes/units must be occupied by at least one person 55 years of age or older.
2. The community must publish and adhere to policies and procedures that demonstrate its intent to be a provider of housing for those 55 and older.
3. The community must comply, no less than once every two years, with age verification rules and procedures established by the Department of Housing and Urban Development.
4. Pursuant to Florida law, a 55 and over community must also register with the Florida Commission on Human Relations.
It is important to point out that the Federal and State laws only provide a minimum threshold for the number of units that must be occupied by at least one person 55 years of age or older. In other words, by virtue of the fact that the statute requires “at least” 80% of the homes/units to be occupied by at least one person 55 years of age or older, this leaves open the door to the possibility that an association can amend its documents to require 90% or 100% occupancy by at least one person 55 years of age or older. Further, it is important to point out that, where a community is properly registered and meets all other requirements of a “55 and over community,” such community may prohibit children under the age of 18 years from residing in the community. Of course, many Florida associations do provide some allowances for temporary visitation for up to 30 or 60 days in any given calendar year, which would be allowable under both the Federal and Florida statutes.
It is additionally important to point out that, although the Federal and State statutes allow up to 20% of the units to be occupied by persons under the age of 55 years, the association should not simply just allow any person under the age of 55 to reside in a unit simply because space is available for such occupancy. We would argue that allowing any such person would be contradictory to the law's requirements that the association demonstrate its intent to be a provider of housing for those 55 and older. Therefore, we recommend that the 20% of the units allowed to be occupied by persons under the age of 55 years be reserved for hardship exemptions, such as where a residing spouse who is under the age of 55 inherits the unit from his or her deceased spouse, or where such other hardship can be demonstrated. This is further supported by commentary in the Federal Register that indicates that it was the intent of Congress that the 20% be reserved for just these types of hardship situations.
FAILURE TO MEET REQUIREMENTS
Failure to adhere to the above provisions could jeopardize a 55 and over community’s right to continue enforcing its age restrictions in Florida. Many times a community association incorrectly assumes that its designation alone, without anything further, will always entitle that community to restrict occupancy based upon age. Such an assumption may have costly legal consequences.
For those Florida communities which are currently enforcing, or wish to enforce or implement age restrictions, it is essential that the Board of Directors consult an attorney to ensure that the governing documents properly allow for such restrictions and that the proper procedures, as mandated by the Federal and state governments, are implemented.
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