The Boomerang Generation and Age-Restricted Communities

                                                                         By Lisa A. Tashjian, Esq. & A.J. Jahanian, Esq. Beaumont Tashjian  It’s no secret that today’s young adults are more likely to live at their parents’ homes for extended periods of time than any prior generation.[1] Even while more are attending college than ever before, the younger generation finds itself “boomeranging” back home with a goal of eventually gaining financial independence. This can pose obvious consternation for boards and managers of age-restricted communities, which are charged with the duty of enforcing the governing documents maintaining the association’s stated purpose. Age-restricted housing is often specifically designed and operated to assist those who are just slightly longer in the tooth. So how does the association handle children and others who wish to reside in the community, without meeting the age requirement stated in its bylaws? Can the association make exceptions for the children of its senior residents? These answers ultimately lie in your community’s governing documents. FIRST THING’S FIRST: 55+ OR 62+? The Fair Housing Act protects people from discrimination on the basis of race, color, national origin, religion, sex, disability and familial status (i.e., the presence of children).  (42 U.S.C. §  3604.) However, senior housing facilities and communities are exempt from the Act, in that they can lawfully refuse to sell or rent homes to families with minor children or others who do not meet the community’s age requirements. The Unruh Civil Rights Act also exempts senior citizen housing from anti-discrimination laws (Civil Code §§ 51.2 and 51.3.) Whether your community qualifies as such a community depends on whether it has been designated as a 62+ community or a 55+ community. Under 24 CFR 100.303, 62 or over housing is a community in which all residents are 62 years of age or older. In these communities, no new occupants can be under the age of 62, unless he or she performs “substantial duties directly related to the management or maintenance of housing.” These rules are pretty straightforward: If your community is 62+, Boomerangers may be out of luck. That said, 55 and older communities have less stringent requirements to meet: a) at least 80 percent (80%) of the units must have at least one occupant who is at least 55 years old; b) the community must publish and adhere to policies that demonstrate the intent of the property to operate a “55 and older” community; and c) the property must comply with HUD’s regulatory requirements for age verification of its residents. (42 U.S.C. § 3607 (b)(2)(C).) Ultimately, once a senior community has been established (either as 62+ or 55+), its age restrictions are legally enforceable. (Huntington Landmark v. Ross, 213 Cal.App.3d 1012 (1989).) Regardless, Boomerangers and other non-qualifying individuals have alternative legal means of moving into age-restricted communities. BOOMERANGER OPTION 1: QUALIFIED PERMANENT RESIDENCY Civil Code Section 51.3 provides that an age-restricted association’s CC&Rs must require that each unit be occupied by one (1) “senior citizen” (either 55 or 62 years of age or older) and that each other resident is a “qualified permanent resident” or “permitted health care resident.” A “qualified permanent resident” is defined as a person who both: a) was residing with the senior citizen resident prior to their death, hospitalization or other prolonged absence, and b) was forty-five years of age or older, or was a spouse, cohabitant or person providing primary physical or economic support to the senior citizen resident. Of course, most Boomerangers are unlikely to meet these requirements, given the 45-year age rule. However, a qualified permanent resident also includes a disabled person who is a child or grandchild of the senior resident, who needs to live with the senior resident because of their condition. Boards and management should be cognizant of and sensitive to these issues, while conducting due diligence and ensuring that the child does in fact have a disabling injury or illness, as defined by California law. If the child’s disabling condition ends, the board is allowed to require him or her to leave the residence upon six months’ written notice. BOOMERANGER OPTION 2: PERMITTED HEALTH CARE RESIDENCY The Civil Code also allows for “permanent health care residents,” or family members of the senior who are providing live-in, long term, or terminal health care, to reside with them. (Civ. Code § 51.3(b)(7).) The association’s governing documents cannot legislate around this, or any other exceptions to the age requirement. Therefore, a Boomeranger may return to their senior parent’s age-restricted community and take up residence there, as long as he or she is providing the senior resident with live-in, long term, or terminal health care. In other words, he or she is residing with the senior resident, who cannot care for him or herself for long periods without assistance, to meet their medical and non-medical needs on a regular basis. BOOMERANGER OPTION 3: THE GOVERNING DOCUMENTS The association’s CC&RS, bylaws, and other documents must set forth the community’s age restrictions. Although the board cannot impose more exclusive requirements than the Civil Code provides, it may be more lenient, based upon the needs and character of the community. For example, though the Civil Code requires a qualified permanent resident to be 45 years or older, a senior community’s CC&Rs may only require them to be 18 or older. This opens the door for more “under-age” residents in the community. If your community is not necessarily equipped for so many children or young adults (i.e., swimming pool equipment is designed to facilitate senior access, common areas will be subject to more use than contemplated by insurance carriers, etc.), this poses a problem. Consequently, it is critical that every senior community is operated in compliance with the relevant laws, and that boards are enforcing the governing documents uniformly and accordingly. Failing to do so may put the community at risk of losing its “senior” status. As with all complicated legal matters, it is recommended that you seek legal advice on the specific requirements of California and federal law, and confirm that your governing documents are sufficiently up to speed.   Lisa A. Tashjian, Esq. and A. J. Jahanian, Esq. are with the law firm of Beaumont Tashjian, a full service community association law firm.