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

mailto:sfrank@saflaw.com sfrank@saflaw.com

http://www.saflaw.com/ www.saflaw.com

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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 

IRS Circular 230 Notice:  Pursuant to recently enacted  U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law.  If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. 
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From: Law Offices of Scott A. Frank sfrank@saflaw.com
To: RPPTL Landlord Tenant Committee landten@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@saflaw.com
www.saflaw.com
 
If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
 

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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@lists.flabarrpptl.org [mailto:landten-bounces@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@saflaw.commailto:sfrank@saflaw.com
www.saflaw.comhttp://www.saflaw.com/

If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

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@lists.flabarrpptl.org
[mailto:landten-bounces@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

IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above
was neither written nor intended by the sender or this firm to be used
and cannot be used by any taxpayer for the purpose of avoiding penalties
that may be imposed under U.S. tax law. If any person uses or refers to
any such tax advice in promoting, marketing or recommending a
partnership or other entity, investment plan or arrangement to any
taxpayer, then the advice should be considered to have been written to
support the promotion or marketing by a person other than the sender or
this firm of that transaction or matter, and such taxpayer should seek
advice based on the taxpayer's particular circumstances from an
independent tax advisor.

Confidentiality Notice: This electronic mail transmission is intended
for the use of the individual or entity to which it is addressed and may
contain confidential information belonging to the sender which is
protected by the attorney-client privilege. If you are not the intended
recipient, you are hereby notified that any disclosure, copying,
distribution, or the taking of any action in reliance on the contents of
this information is strictly prohibited. If you have received this
transmission in error, please notify the sender immediately by e-mail
and delete the original message. Thank you for your cooperation.

From: Law Offices of Scott A. Frank sfrank@saflaw.com
To: RPPTL Landlord Tenant Committee landten@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@saflaw.com

www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please
notify the sender by reply transmission and delete the message without
copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any
federal tax advice contained in this written or electronic
communication, including any attachments or enclosures, is not intended
or written to be used and it cannot be used by any person or entity for
the purpose of (i) avoiding any tax penalties that may be imposed by the
Internal Revenue Service or any other U.S. Federal taxing authority or
agency or (ii) promoting, marketing or recommending to another party any
transaction or matter addressed herein.

landten mailing list
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