Blog posting by David Swedelson, California Condo lawyer and HOA attorney; Partner SwedelsonGottlieb
Community Associations Institute’s Fast Tracks News Bulletin reports on a Fort Myers, Fla. age-restricted homeowners association that is telling an owner that that he does not have the right to have guests who are younger than 55 visit his home while he is away.
The owner says that he enjoys having his children and grandchildren stay over at his house when they’re in town. He also occasionally lets his employees vacation there free of charge as a reward for their hard work. But apparently he lets them stay in his house when he is not there. According to News-Press.com, the HOA, Bayside Estates, says that what this owner is doing is a violation of the 55-and-older homeowners association’s rules because some of the guests are underage (we assume 55).
The issue arose in 2008 when the board sent letters to the owners putting them on notice that they had broken the rules, and subsequently fined them $1,000 for their alleged violations after they refused to comply with the rule and not allow the “underage” guests to stay at the home.
Apparently, the association has no problem with the underage family members visiting the owner; it is when the owner allows the underage guests to stay at the home. This raises issues as to short term rentals and the fact is that these underage individuals are being allowed to stay at the home that is in an age restricted community. I see both sides to this dispute.
The owners of the home raise an interesting fact; they bought their home at Bayside in 1981, before the community became age-restricted. The owner’s attorney argued that they were grandfathered into the association’s original governing document. In California, an owner would not be grandfathered unless the CC&Rs, as amended, stated that the amendment would not apply to existing owners.
However, the facts in the Florida case get interesting; apparently the owners swapped their original house in 2006 for another home in Bayside. Because of this, the association argues the owner is no longer grandfathered in.
The owners also contend that the association’s rules are very vague and poorly written and only refer to age restrictions on renters and not on guests, and further, that the association has rarely enforced the age-restriction rules prior to this and claim discriminatory treatment. If this is true, the association may have some difficulty with enforcement. And it is not at all uncommon for owners to claim that they are being targeted and their association is discriminating against them.
Lots of issues here, and we would need more facts to really make any conclusions. In California, a community association could amend the CC&Rs to become age restricted and not necessarily be required to “grandfather” current owners. And the restriction on rentals or guests would have to be in the CC&Rs, not the rules. California community associations cannot make rules regarding use of a home or unit that are more restrictive than the CC&Rs.
It will be interesting to see how the Florida case turns out. Do you have any similar situations at your California community association? Let me know. And if you have questions or comments, contact David Swedelson: dcs@sghoalaw.com