[RPPTL LandTen] Question on Senior Housing

Fri Dec 9 13:19:30 PST 2011

As a very practical matter, if the HOA or owner has not required
screening for tenants, then the age 55+ status is likely not being
enforced and your client has no problem.

If the HOA or the owner are asserting the age 55+ status and inquiring
about screening your client's tenant, then it would do well to have your
client move quickly to establish the current status of the community as
either an age 55+ exempt community or not.

To maintain the exemption, the number of units occupied by at least one
occupant age 55 or older must be 80% or greater of the total number of
occupied units in the community, in order to maintain status as an
exempt "age 55 +" community.  There is a HUD rule requirement under the
federal Housing for Older Persons Act (HOPA) for a survey of all
occupied units every two years.  Your client can go to the office and
request a copy of the survey that the HOA or owner must maintain
demonstrating compliance with the 80% requirement.  Likely, if the age
55+ rules have not been enforced for some time, there will not be an age
survey.  The failure to maintain a the survey is sufficient under the
federal rule to demonstrate a lack of intent to provide housing for
older persons, and likely that the age 55+ exemption is lost until such
time as the survey and full compliance with the 80% requirement are
established.

Check the April, 1996 HUD Rule implementing the Housing for Older
Persons Act (HOPA) for more information on the requirements.  

Your client should have a good defense if there is no age survey to
support that the exemption is in place.  Proving that no survey was
produced will require a witness and a sworn statement from your client
to the effect that he or she made the request and no such document was
provided.  If the community is asserting that it is an age 55+
community,  they must have no age survey that is no more than two years
old to maintain compliance.  If the HOA or the owner is attempting to
evict the tenant or your client, then that evidence of non-compliance
this will certainly work to defend your client's position.  If the
community does have an age survey and the survey demonstrates compliance
with the age 55+ exemption, then your client has a problem.

There are other factors to consider in whether or not the age 55
exemption applies, but the 80% factor is one of the major factors to
consider and is the easiest one to determine, based upon the HUD rule
requirements.

David Eastman

Lutz Bobo Telfair Eastman Gabel & Lee

2155 Delta Blvd. Ste 210-B

Tallahassee, FL 32303

850-521-0890

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Thursday, December 08, 2011 5:31 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question on Senior Housing

Check F.S. 760.29(4).  I believe there is a mention in there of a
regular enforcement requirement.

Cary 

Law Offices of Cary P. Sabol

P.O. Box 15981 | West Palm Beach | Florida | 33416 

Phone: (561) 281-2744 

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From: Law Offices of Scott A. Frank <sfrank at saflaw.com>
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org> 
Sent: Thursday, December 8, 2011 5:09 PM
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

www.saflaw.com <http://www.saflaw.com/> 

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