Post by Admin on Jan 6, 2016 9:39:47 GMT -5
7-Retaining over 55 age restrictions.
For many reasons, I would not consider this as a benefit of revitalization. This is a complicated, emotional and much misunderstood issue. I will try to explain why I believe this Amendment is problematic for S-bag. This is as I understand it from my attorney. Mr. O’Neal has successfully represented seven homeowner associations for violations of the Fair Housing Act and speaks from direct and related legal experience. He prevailed in all cases. In one case, the judgement for his client was over $400,000 and when the HOA could not pay, his clients levied the HOA clubhouse, pool and tennis courts. Four directors, sued individually, declared bankruptcy. The details are a matter of public record in Orange County. The consequences of waking the HUD giant are potentially financially disastrous.
Here is a summary:
For purposes of the Fair Housing Laws, it is very important to note that the Developer put NO AGE RESTRICTIONS in the original covenants and restrictions for residents of S-bag Lake. S-bag was developed as a campground and permitted occupancy in “camping facilities” with few restrictions. Obviously, S-bag was not in any way “intended and operated for occupancy by persons 55 years of age or older,” per the “housing for older persons” exemption in 42 USC Section 3607(b)(2).
In 1989, shortly after the Fair Housing laws were amended to add “familial status” as a protected category, SLohA recorded a purported amendment to the original covenants and restrictions. The only significant change that amendment made to the original covenants and restrictions was to add the following age restriction:
“1. The permanent occupancy of a residence sH all include at least one person fifty-five (55) years of age or older. Permanent occupancy, for the purpose of this Covenant and Restriction, is defined in the Rules and Regulations.”
The obvious purpose of that amendment was to try to fit S-bag Lake within the exemption in 42 USC Section 3607 for “housing for older persons.”
After establishing the façade that S-bag was “intended and operated for occupancy by persons 55 years of age or older,” SLohA adopted a “rule” prohibiting children from becoming permanent residents in S-bag Lake.
That rule, Regulation 6-1C (“Residency and Occupancy Qualifications”), states:
“6-1C) Persons under the age of 55 years cannot be a permanent resident of the Resort. A spouse or surviving spouse is exempt from this restriction. Persons under the age of 55 years may occupy any unit for an accumulated total of not more than sixty (60) days in any Twelve (12) month period. All person (sic) under the age of 55 years occupying any unit sH all produce written authorization to the Association as provided in Regulation 6-5.”
Legislators added “familial status” as a protected category in the Fair Housing Act to fill a loophole which landlords and others were using to try to cut down on the number of minorities in a particular housing development. In the case of S-bag Lake, keeping out “families with children” has also had the practical effect of keeping out minorities. This intent was further evidenced in a flyer published by the Board in 2015 in which it was announced that revitalization of the covenants would prevent S-bag from becoming a “low income community with lots of children”.
Because Mr. O’Neal has represented “families with children” in several Florida HOA’s who did essentially the same thing that S-bag did with its 1989 Amendment, there is a chance that a Plaintiff would prevail in an action brought against S-bag using the Amendment and flyer as evidence. Add to that the inherent problem of the Amendment itself; which claims legitimacy under a failed 1986 Amendment that never passed the ballot.
Discussion: This issue was an important element in the mediation of the lawsuits against SLohA. The litigants tried very hard to get the 1989 amendment dropped from revitalization—not because anyone objected to revitalization in principle—but due to the potential for future damaging litigation by a board wanting to enforce the over-55 restriction. The effort failed. The court, in an inscrutable decision and without a written advisory opinion, gave a nod to the Amendment, allowing SLohA to include the Amendment in its document revitalization package. The insurer for SLohA probably also realized that this issue might be litigated someday given SLohA’s penchant for provoking lawsuits. This could very well have been a consideration for dropping SLohA’s insurance coverage.
SLohA is attempting to revitalize a known risk and I will give a FALSE to any revitalization "reason" that includes this Amendment.
Canned Disclaimer: I am not an attorney and the above is offered for informational and entertainment purposes and should not be relied upon as any form of legal advice. If you have any questions about the matter, you are urged to consult an attorney to address specific concerns.
For many reasons, I would not consider this as a benefit of revitalization. This is a complicated, emotional and much misunderstood issue. I will try to explain why I believe this Amendment is problematic for S-bag. This is as I understand it from my attorney. Mr. O’Neal has successfully represented seven homeowner associations for violations of the Fair Housing Act and speaks from direct and related legal experience. He prevailed in all cases. In one case, the judgement for his client was over $400,000 and when the HOA could not pay, his clients levied the HOA clubhouse, pool and tennis courts. Four directors, sued individually, declared bankruptcy. The details are a matter of public record in Orange County. The consequences of waking the HUD giant are potentially financially disastrous.
Here is a summary:
For purposes of the Fair Housing Laws, it is very important to note that the Developer put NO AGE RESTRICTIONS in the original covenants and restrictions for residents of S-bag Lake. S-bag was developed as a campground and permitted occupancy in “camping facilities” with few restrictions. Obviously, S-bag was not in any way “intended and operated for occupancy by persons 55 years of age or older,” per the “housing for older persons” exemption in 42 USC Section 3607(b)(2).
In 1989, shortly after the Fair Housing laws were amended to add “familial status” as a protected category, SLohA recorded a purported amendment to the original covenants and restrictions. The only significant change that amendment made to the original covenants and restrictions was to add the following age restriction:
“1. The permanent occupancy of a residence sH all include at least one person fifty-five (55) years of age or older. Permanent occupancy, for the purpose of this Covenant and Restriction, is defined in the Rules and Regulations.”
The obvious purpose of that amendment was to try to fit S-bag Lake within the exemption in 42 USC Section 3607 for “housing for older persons.”
After establishing the façade that S-bag was “intended and operated for occupancy by persons 55 years of age or older,” SLohA adopted a “rule” prohibiting children from becoming permanent residents in S-bag Lake.
That rule, Regulation 6-1C (“Residency and Occupancy Qualifications”), states:
“6-1C) Persons under the age of 55 years cannot be a permanent resident of the Resort. A spouse or surviving spouse is exempt from this restriction. Persons under the age of 55 years may occupy any unit for an accumulated total of not more than sixty (60) days in any Twelve (12) month period. All person (sic) under the age of 55 years occupying any unit sH all produce written authorization to the Association as provided in Regulation 6-5.”
Legislators added “familial status” as a protected category in the Fair Housing Act to fill a loophole which landlords and others were using to try to cut down on the number of minorities in a particular housing development. In the case of S-bag Lake, keeping out “families with children” has also had the practical effect of keeping out minorities. This intent was further evidenced in a flyer published by the Board in 2015 in which it was announced that revitalization of the covenants would prevent S-bag from becoming a “low income community with lots of children”.
Because Mr. O’Neal has represented “families with children” in several Florida HOA’s who did essentially the same thing that S-bag did with its 1989 Amendment, there is a chance that a Plaintiff would prevail in an action brought against S-bag using the Amendment and flyer as evidence. Add to that the inherent problem of the Amendment itself; which claims legitimacy under a failed 1986 Amendment that never passed the ballot.
Discussion: This issue was an important element in the mediation of the lawsuits against SLohA. The litigants tried very hard to get the 1989 amendment dropped from revitalization—not because anyone objected to revitalization in principle—but due to the potential for future damaging litigation by a board wanting to enforce the over-55 restriction. The effort failed. The court, in an inscrutable decision and without a written advisory opinion, gave a nod to the Amendment, allowing SLohA to include the Amendment in its document revitalization package. The insurer for SLohA probably also realized that this issue might be litigated someday given SLohA’s penchant for provoking lawsuits. This could very well have been a consideration for dropping SLohA’s insurance coverage.
SLohA is attempting to revitalize a known risk and I will give a FALSE to any revitalization "reason" that includes this Amendment.
Canned Disclaimer: I am not an attorney and the above is offered for informational and entertainment purposes and should not be relied upon as any form of legal advice. If you have any questions about the matter, you are urged to consult an attorney to address specific concerns.
