Age-restricted communities have special rules

Q: I have heard of HOPA. I think it has something to do with housing the elderly. Can you please tell me more about it?

A: HOPA is the acronym for the federal Housing for Older Persons Act of 1995. This law created an exception to the Fair Housing Act, which prohibited the discrimination in the leasing and selling of residential housing based upon familial status, which was a protected class.

There are many age-restricted communities in Southern Nevada that either prohibit children or restrict the age of its occupants.

One other requirement for an age-restricted community is that at least 80 percent of the occupied dwelling units must have at least one occupant who is at least 55 years old. An association must verify the age requirements to maintain its status. Associations should clearly state in their resale packages that they are an age-restricted community.

Often you will see language such as “at least one resident must be 55 years or older, and no one younger than 19 may reside in the community” in the association’s governing documents.

It is important to note that the 80 percent occupancy requirement is based upon the total number of housing units and not the total number of residents within the community.

If you are selling your home within an age-restricted community, it is your legal obligation to inform a potential buyer of the restriction.

If you are an investor who purchases association homes through foreclosure auctions, you need to perform your due diligence before the purchase. This is how lawsuits occur.

Please refer to the covenants, conditions and restrictions. It is the only document that may prohibit the resale of the home to people younger than 55. The restriction cannot be imposed by a rule or regulation.

It is important for boards and management companies to carefully review their covenants.

For example, can a 19-year-old be the sole occupant of a home without violating HOPA? In some cases a 19-year-old could be the sole occupant of the dwelling if he or she had been living with another person who was at least 55. For example, an elderly relative could have died. Regardless of the circumstances, an association must maintain the 80 percent occupancy requirement.

Does the underage resident have the same privileges as older homeowners as to the use of the recreational facilities, programs and the opportunity to serve on the board or on the various association committees. Again you need to review the covenants of your association.

Can an association amend its covenants by a vote of the homeowners to lower the age of the buyer? Again, review the HOA covenants as such an amendment could be passed as long as the community continues to maintain its 80 percent occupancy requirement.

It should be noted that HOPA requires an association to adopt procedures that provide for updates at least every two years. The association must be able to produce verification of occupancy and residents’ ages; generally this requires a driver’s license, birth certificate, passport or other official identification.

If an association fails to monitor its 80 percent occupancy requirement, it would be in violation of the federal law and subject to civil monetary penalties from the Department of Housing and Urban Development or even lawsuits initiated by individual members of the association.

The association also would face the possibility of losing its legal ability to enforce the age-restricted requirements of the community.

Although this is not an issue within Nevada, there are other states that may have fair housing laws that are more or less stringent than the HOPA requirements.

Barbara Holland, certified property manager, broker and supervisory certified association manager, is president and owner of H&L Realty and Management Co. Questions may be sent to Association Q&A, P.O. Box 7440, Las Vegas, NV 89125. Fax is 702-385-3759, email is support@hlrealty.com. Holland is also available to speak at your organization or company.