Question: I live in a 55 and over community and the board of directors for our association is considering a policy that would allow under-aged occupants to live in a community under certain circumstances. Would such a policy threaten the community status as a 55 and over community? A.E. (via e-mail)
Answer: Under the right (or wrong) circumstances, yes. There are a number of requirements that a community must satisfy in order to be considered “housing for older persons,” often referred to as a “55 and over” community. The main point of being a 55 and over community is that families with children can be excluded, which is otherwise illegal under state and federal anti-discrimination laws.
In addition to having a provision in your governing documents establishing age requirements for occupants and registering with the State, the community must also perform a periodic census to verify that at least eighty percent of the homes are occupied by at least one individual over the age of 55. However, the law does not address how the community must regulate the remaining twenty percent, leaving it to the community’s governing documents.
Many communities require that every home be occupied by at least one person over the age of 55 and leave the remaining twenty percent as a “cushion” for situations where a hardship exists, such as where a spouse under 55 years old inherits the home. Other communities, though clearly a minority, simply leave the twenty percent as a “set aside” and permit non-age qualifying individuals to reside in the community.
Depending on the requirements in your governing documents, up to twenty percent of the homes can be occupied by individuals less than the age of 55 and not jeopardize the 55 and over status of the community. However, communities should be very careful in how they handle the twenty percent factor because falling below the required eighty percent minimum would likely result in loss of the community’s status as housing for older persons. In my experience, most governing documents require that every home be occupied by at least one person age 55 or over, and provide the board with the authority to grant hardship exceptions, such as the surviving spouse example mentioned earlier.
Originally posted on Florida Condo HOA Blog