[RPPTL LandTen] Question on Senior Housing

[Shane Weaver]

Scott,

42 U.S.C.A. 3607(b)(2)(C) lists the general requirements to become (or stay) 55+ housing. The obvious one is meeting the 80/20 threshold, but the housing provider is also required to "publish and adhere to policies and procedures that demonstrate its intent to qualify for the exemption."

They may well have fallen under 80/20 by now, which certainly would kill their covenant. Even if they're still at 80/20, not enforcing the age restriction for several years is a pretty solid example of not adhering to policies that demonstrate an intent to qualify for the exemption.

Given what you've wrote, it may be safe to assume that the community has also failed to maintain age-verification surveys, which it is required to do every two years under 24 C.F.R. 100.307.

Finally, 24 C.F.R. 100.306 lists other factors used to show the requisite intent; they may be violating some of these, too.

Of course, all of this is aside from any of the usual common law waiver or laches arguments.

Hope that gives you some ammunition.
Sincerely,
Shane

Shane Weaver, Esq.
Legal Aid Society of Palm Beach County
423 Fern Street, Suite 200
West Palm Beach, FL 33401
Tel. (561) 822-9785
Fax (561) 822-9885

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank
Sent: Thursday, December 08, 2011 5:09 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question on Senior Housing

Client rents a condo and has a tenant who is not 55+.  Housing is restricted to 55+.

However, this is an older development, and it is my understanding from a former board member that she is aware that until very recently they have not enforced the covenant for at least 5 years, maybe more.  This is not my area, but I thought I read somewhere that you can lose the 55+ protection if you do not enforce it.

Any thoughts?

Thanks.

Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p:  (561) 372-7860
f:  (561) 423-5721
sfrank at saflaw.com<mailto:sfrank at saflaw.com>
www.saflaw.com<http://www.saflaw.com/>

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