Senior Living Communities in California frequently face a host of unique challenges and difficulties that may be remedied relatively easily. We have compiled some of our top solutions to very common problems. As always, consult with your legal counsel prior to making any changes to your governing documents.
1) Age Verification
Problem: Often times, age restricted communities experience difficulties in securing up-to-date and accurate age verification of residents.
Solution: Obtain a handheld ID scanner. These inexpensive devices cost between $50.00 and $300.00 depending on sophistication and ease of use. These devices allow an individual to obtain a digital copy of a driver’s license or other document with ease. It is important for age restricted community associations to conduct age verification checks every two years to comply with federal law. Note that there are alternatives allowed by law when an owner refuses to provide verification (such as declarations under penalty of perjury).
2) Rules and Regulations
Problem: Many of our clients have board-adopted rules and regulations which contain language that specifically prohibits certain age groups from using recreational facilities, such as pools. While the Department of Fair Employment and Housing (DFEH) has not ruled specifically on whether this language is allowed, it may pose a problem if challenged.
Solution: Amend the rules and regulations to contain age-neutral language. For example, if your current rules read: “No children under age twelve allowed in the pool,” alter the language to read: “Individuals who are wearing diapers may not use the pool.” This type of language change may help the association avoid a DFEH complaint.
3) Escrow Demand
Problem: Brokers are selling lots or units within the Association without any regard for the age restricted status of the community and an underage homeowner who recently purchased a home in an age restricted community claims he was not aware of the age restrictions.
Solution: Include at the top of any escrow demand documentation language stating clearly: “Association is a 55+ Age Restricted Community.” Post signs to that effect on the common area. While homeowners are put on legal notice due to the CC&Rs, this clear language can help avoid any confusion.
4) The 80/20 Conundrum
Problem: New underage homeowner wants to move in claiming that federal law only requires 80% of the residents to be 55+.
Solution: Federal regulations make clear that the 80/20 rule does not mean that 20% of the units are set aside for non-seniors; in fact, that would be in violation of other federal requirements. Aggressively pursue violators of this rule as they could place your association’s age restricted status in jeopardy.
5) Sunshine Committees
Problem: Many of our clients have “Sunshine Committees” that take in small donations to pay for flowers, condolences and remembrances. These donations may be taxable income to the association.
Solution: Consult with your association’s CPA to ensure that the Sunshine Committee donations are being tracked and reported appropriately.
6) Permitted Health Care Residents
Problem: A 55+ resident is hospitalized and their underage Permitted Health Care Resident (PHCR) wishes to remain at the owner’s home while the resident is away.
Solution: Adopt clear guidelines defining when a PHCR may remain in the residence pursuant to Civil Code section 51.3(b)(7) (or 51.11(b)(7) for Riverside County). A PHCR is entitled to continue occupying the dwelling as a permitted resident if: (A) the senior citizen became absent from the dwelling due to hospitalization or other necessary medical treatment and expects to return to his or her residence within 90 days from the date the absence began; and, (B) the absent senior citizen or an authorized person acting for the senior citizen submits a written request to the owner, board of directors, or governing board stating that the senior citizen desires that the PHCR be allowed to remain in order to be present when the senior citizen returns to reside in the development. Upon submission of the written request, the owner, board of directors, or governing board shall have the discretion to allow a permitted health care resident to remain for a time period longer than 90 days from the date that the senior citizen’s absence began, if it appears that the senior citizen will return within a period of time not to exceed an additional 90 days.
7) Qualified Permanent Residents
Problem: One of the 55+ residents within the community lives with his spouse who is under 55, but older than 45. After the 55+ resident passes away, can the underage resident remain within the 55+ community?
Solution: Yes. A spouse of any age is a “Qualified Permanent Resident.” To avoid confusion, the board should include clear language within its rules defining “Qualified Permanent Residents” (QPRs). QPRs are individuals who may remain in the senior community after the 55+ resident dies if they meet certain criteria. QPRs must reside with the 55+ resident prior to death and be (a) at least 45; or, (b) a spouse or cohabitant of any age; or, (c) a person of any age providing primary physical or economic support for the 55+ resident. A QPR also means a disabled person or person with a disabling illness or injury who is a child or grandchild of the senior citizen or a qualified QPR, who needs to live with the senior citizen or QPR because of the disabling condition, illness, or injury. Please note that PHCRs may not be QPRs. Remember, these rules and the rules relating to PHCRs may not apply to senior mobilehome communities. If your housing consists of mobilehomes you should confer with counsel.
8) Reasonable Modifications
Problem: When a resident submits a reasonable modification request to the Association, there is significant delay between the application and approval.
Solution: Adopt clear guidelines with step by step instructions detailing exactly how a resident needs to request a reasonable modification. Provide the requesting party with a form allowing the resident to describe three items: 1) verification of the disability; 2) the needed modification; and, 3) documentation showing the relationship between the disability and the need for the requested modification. The verification of the disability can be provided in several ways, such as a doctor’s note or handicap placard; if the disability is obvious, the board should not seek additional verification. Even if the disability is obvious, the board can request for documentation showing the relationship between the disability and the modification. If the disability is verified and the modification is necessary to afford the resident an equal opportunity to use the dwelling or common areas, the board should evaluate the request on a case by case basis to determine whether the modification is reasonable. Remember, in nearly every case, the applicant, not the association, pays for the modification since the Association is not normally subject to the ADA. When in doubt, contact your legal counsel for advice.
9) Rules Enforcement
Problem: The association has easy to understand rules and regulations, but fails to enforce them consistently.
Solution: Once the association has clear rules and regulations, the board should draft an enforcement policy. These policies lay out clear guidelines for notices, hearings, fines and further legal action. A clear framework will create clear boundaries and ensure the rules and regulations are enforced equally.
10) Underage Tenants
Problem: Homeowners lease out their lots or units and rent to underage individuals, thus potentially jeopardizing the association’s age restricted status.
Solution: Adopt rules or amend the CC&Rs to require every owner who leases his or her property to include age restriction language within the leases. Further, require these homeowners to provide the board with a copy of the lease and age verification of the tenants within a specified period of time after rental. Associations with transponder-operated access to recreational facilities may be able to deactivate the tenants’ transponders after a hearing, in cases of violation.