Estate Planning

Frequently Asked Questions Relating to Senior Communities

Curtis C. Sproul is a Partner at Weintraub, Genshlea Chediak Sproul LC in Sacramento and Mary Howell is a Partner at Epsten Grinnell & Howell in San Diego. They are both contributing authors to Advising California Common Interest Communities published by CEB.

What constitutes a senior community in federal law as compared to state law?
The Fair Housing Act (FHA) clearly states that if other criteria are satisfied, a community qualifies as a senior community so long as 80 percent of the homes are occupied by at least one person who is 55 years of age or older (42 USC §3607(b)(2)(C)). In California law, the Department of Fair Employment and Housing has taken the position that the law requires 100 percent of the homes to be occupied by at least one person who is 55 years of age or older. This is in spite of the Unruh Act provisions stating that Qualified Permanent Residents and Permitted Health Care Residents can continue to occupy homes, under certain circumstances, in the absence of a senior. The federal law also has no specific rules regarding persons under the age of 55 who could occupy homes in a senior community and thus, under the federal law, a community could regulate the ages of under-55 residents or prohibit any residencies by under age persons. In contrast, California’s Unruh Act specifically sanctions certain under age occupancies.

Most commentators on this subject are of the opinion that since the Federal rule is arguably more permissive than the California rule, the governing documentation for senior housing communities in California should be written to track the categories of permitted residency under the Unruh Act. In no circumstances should the percentage of dwellings occupied by at least one person who is 55 years of age or older be permitted to fall below 80 percent. The federal law has no flexibility with respect to the 80 percent rule.

When conflicts arise between the federal and state rules, the doctrine of federal preemption dictates that the federal rules prevail unless the state statutes provide more protection. The 1994 amendments to the California Fair Employment and Housing Act (FEHA) clarified that a person must comply with both the state and federal acts. Govt Code §12955.6. Accordingly, an alleged discriminatory act will be judged against whichever act is the most restrictive.

The remedies under the two sets of law are also different. The FHA provides a process in which a complaint is filed with an administrative agency (with payment of prosecution by the government), while the Unruh Act provides for pursuit of an administrative procedure through the Department of Fair Housing and Employment. Neither federal or state law allow or provide for discrimination based on sexual preference. In fact, Lab C §1102.1 prohibits discrimination on the basis of sexual orientation for hiring purposes.

Does the conclusion in Paragraph 1, above, mean that a Qualifying Permanent Resident could be compelled to vacate a residence in an active adult community under certain circumstances?
The prevailing opinion on this issue is “YES.” If an under age 55 person is married to an age-qualified person and the Qualifying Resident subsequently dies or the couple is divorced, the Unruh Act gives the former spouse a special privilege to continue to reside in the home indefinitely. CC §51.3(e). However, that person has no legal right to permit others to reside in the home who do not meet the requirements of being either a “Qualified Permanent Resident,” or a “Permitted Health Care Resident,” or a guest.

Accordingly, in this instance, a new wife may fail to meet the qualification for residency, even though her husband’s right of occupancy continues.

A guest under the age of 55 comes to visit and stays overnight 3 out of 4 weekends a month, which exceeds the 60-day time allotment in any calendar year. Is this a violation?
Yes. A “guest” is distinguished in the law from a “resident.” “Residency” is generally defined as staying somewhere with the intent to continue to reside. A “guest” is a non-resident. The statute says the association must permit guest occupancy up to “60 days in any year.” If a “guest” has stayed (overnight) for 60 days, that guest has used up his guest rights for the year

What is the difference between visit and reside?
Guests who stay overnight are considered visiting, if they stay overnight for 60 days or less in a calendar year. Guests are visiting when they stay overnight for several nights, even cumulatively over 60 days, as long as they maintain and reside in a residence elsewhere to which they return for the majority of the week. Persons are residing when they are staying overnight for more than 60 days and cannot establish that they meet any of the previous definitions of "visiting".

A court order places two grandchildren in their grandparent’s senior community home temporarily. Is this a violation?
This would be in violation of the 60-day rule if they stay; the children might be entitled to qualified permanent resident status if they are disabled and are required to reside with the grandparents as a result of the disability.

What does the Association do to ensure that the age restrictions are met?
The state and federal laws regulating active adult communities require homeowner associations in such communities to adopt policies that will ensure that at least 80 percent of the homes in the development are in compliance with the restrictions on residency. Consistent with this policy, the Association is responsible for maintaining accurate identifying information, including age information, on all Association members and other residents.

Are there any Covenants, Conditions & Restrictions (CC&Rs) or applicable laws, on who can own a home in an active adult community?
No. Both the federal and state statutes authorizing, age-restricted communities, establish rules for occupying residences, rather than rules limiting the persons who can own homes in an age-restricted development. Accordingly, a single individual or a couple younger than 55 years of age have the legal right to own a home in an age-restricted community. Those owners simply have no right to occupy the home merely as a result of their status as owners of record, although they could rent the property to persons who meet the age qualifications for occupancy of homes in the development.

Can a qualified permanent resident reside with an underage spouse or co-habitant? For example, if a qualifying resident was married to a person who is 45 years old, and the qualifying resident dies, can the widow remarry a person his or her age and continue to reside in an active adult community?
No. As summarized above, certain classifications of persons under the age of 55 have the right to reside in an active adult community, but that right of residency always originates due to the under-aged person’s relationship to a Qualifying Resident, 55 years of age or older. Under certain circumstances the right of residency of a Qualified Permanent Resident (but not a Permitted Health Care Resident) can continue in the absence of a qualifying resident also being in residence, but the underage occupant under those circumstances has no right to confer residency privileges on other underage persons. The right of Permitted Health Care Residents to continue their residency in the absence of a Qualifying Resident is more limited under the law.

What is the situation regarding same sex couples in Senior Communities?
Civil Code §51.3 and §51.11 state that permissible cohabitants include “persons who are domestic partners within the meaning of Section 297 of the Family Code.” There may be some instances, however, where same sex couples do not fall under the statutory definition.

A review of reported state and federal decisions produced no cases specifically addressing the question of whether same sex couples should be considered as a family unit, to the same extent as heterosexual couples, insofar as qualification for residency in an age restricted residential development is concerned. However, the decision in Romer v Evan (1996) 517 US 620, 116 S Ct 1620 did declare unconstitutional (as a violation against equal protection) a Colorado referendum seeking to repeal state laws prohibiting discrimination based on "homosexual, lesbian or bisexual orientation." Further, the court severely chastised the measure as “[withdrawing] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination” and thereby making homosexuals “unequal to everyone else.”

The Code of Federal Regulations makes no reference to the terms “same sex,” “homosexual,”“lesbian,”“gay,” or any combination thereof. Discriminatory conduct under Title 24, Housing and Urban Development, focuses on conduct associated with real estate sales/lending/related practices, handicapped persons, and the elderly housing exemption.

California state law makes similar references to various classes of impermissible discrimination, such as discrimination on the basis of race, color, religion, sex, marital status, national origin, ancestry, familial status, disability of person. However in the case of O’ Connor v Village Green Owners Assn. (1983) 38 Cal3d 790, the California Supreme Court ruled that the list of invidious discriminatory classifications in the Unruh Act was descriptive, rather than exclusive. For example, the O’Connor case dealt with a CC&R age restriction and yet age is not listed as a discriminatory classification in the Act.

In Smith v Fair Employment & Housing Commn.,(1996) 12 CA4th 1143, the California Supreme Court ruled that a landlord could not rely on his Constitutional rights of religion and free speech as a basis for denying occupancy to prospective tenants who were cohabiting without the benefit of marriage. The Court ruled that the prohibition against discrimination on the basis of marital status extended to unmarried, cohabiting couples. In addition, neither the freedom of religion clause of the United States Constitution, nor the California Constitution’s freedom of religion clause, preempted the landlord from the California Fair Employment and Housing Act (FEHA) (Govt C §§12900-12996).

Considering the current thrust of court rulings on discrimination and the advancing political and social climate toward same sex partners it is advisable for developers of age-restricted housing and related homeowner associations operating within senior citizen housing developments, to recognize same sex couples as, at minimum, a “cohabitating” unit. Failure to do so may, at the very least, result in a challenge in an administrative or court forum with resulting adverse publicity.

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