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Rules on purchasing a condo in ‘Over 55’ community

December 27, 2013
By SYLVIA HELDRETH - Real Estate Law , Cape Coral Daily Breeze

QUESTION: My daughter would like to buy my husband and I a condo for our retirement but the place we found is in an "Over 55" community. My daughter is in her 40s so she is not able to make the purchase. What law prohibits this purchase? Is there any way to get around this rule?

ANSWER: The condo you are interested in probably does not have a rule prohibiting ownership by those under age 55. The law that does apply, The Fair Housing Act, actually prohibits discrimination in housing based on race, color, national origin, religion, family status, disability or sex. If your daughter was told that she is not able to purchase a condo for you by a representative of the condominium association or a real estate agent, she would have a legitimate cause to file a fair housing complaint.

It is more likely that she is simply assuming, as you are, that the condominiums in "Over 55" communities cannot be owned by younger people. In fact, many children buy condos for their elderly parents.

The "Over 55" rule actually applies to those who live in the community, not those who own the units. Age requirements can be legitimately imposed by communities that are designated for adults.

An "Over 55" community can require that one of the residents of the condo must be 55 or older and that no children under the age of 18 may live there. These communities also allow up to 20% of the overall residents to be younger than 55. The most common situation accommodated by that requirement is when a husband or wife is older than their spouse but they desire to hold title in the name of the younger of the two for tax and estate planning reasons. Both, of course, intend to live there together.

While the over age 55 requirements are usually fairly clear, what is less clear is the issue of young visitors and the length of their stay. It is never the intent of a condo association to restrict access of its residents to their children and grandchildren but conflict arises when the younger generation arrives for an extended stay. Condo rules usually clarify that "just visiting" does not apply to extended stays of months or years.

Issues also arise when a younger family member comes for an extended stay to care for an ailing elder who wishes to remain in his or her home. Condo rules, if not the Operating Agreement itself, should clarify these issues.

Be sure you and your daughter understand the rules and have thought through what issues you may face in the future before you purchase. It would be prudent to seek the advice of an attorney who had experience in condominium law before making a final decision.

Attorney Sylvia Heldreth is a certified specialist in real estate law. Her office is located at 1215 Miramar S., in Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.



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