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Age-Restricted Communities: How to Comply with Federal and State Law

March 09, 2020

By: Emmett Egger, Daniel McIntosh & James Kattelmann

Many communities desire to place age restrictions on who can live in the community as such restrictions allow a community to provide the benefits of senior housing to its residents, including a prohibition of children under the age of eighteen (18) or nineteen (19) as full time residents. There also is the possibility of saving a significant amount of development costs by getting a waiver of the requirement to pay school impact fees levied by a county. Some counties also have reduced transportation impact fees for age-restricted communities. Yet Federal and Florida law prohibit discriminating on the basis of family status, and this prohibition, in general, bars communities from imposing age restrictions on who can live in the community. But a community can impose age restrictions if it qualifies for an exemption as provided under Federal and Florida law. In other words, a community may prohibit grandchildren from living with their grandparents only if the community complies with the applicable laws.  

The penalties for not qualifying for the exemption pursuant to Federal and Florida law can be significant. For example, a community may be required to pay a civil penalty in addition to attorney’s fees and actual damages suffered by the person(s) against whom the community discriminated. In addition, the community may have to pay impact fees that have been waived or reduced along with additional penalties.

In general, age restrictions may be adopted if a community (i) requires that eighty percent (80%) of the houses in the community are occupied by at least one person fifty-five (55) years old or older, (ii) publishes and adheres to policies that demonstrate the community’s intent to operate as housing for persons fifty-five (55) years old or older, and (iii) develops a procedure for routinely determining who occupies each residence and whether at least one person occupying the residence is fifty-five (55) years old or older. To impose age restrictions and comply with the applicable laws is more nuanced than this general rule, and some communities fail to qualify. Some of the more nuanced questions, for example, arise when determining what is considered the community, especially if a developer is planning a phased development where some phases will have residence available for occupancy sooner than others.

If you are considering imposing age restrictions on who can reside in your community or future development, contact a lawyer to ensure compliance with local, state, and federal law.  


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Emmett

Emmett Egger is an associate in the firm’s Commercial Litigation Group. He also has experience assisting clients with complex real estate development, finance and commercial leasing issues. 

They say sports helps to build character and that’s exactly what happened to Emmett. Having played tennis since the young age of 6, Emmett has gained a tremendous amount of discipline, focus, and determination which helps him work on complex real estate development, finance, and commercial leasing issues for clients and gain top results.

In addition to serving as the captain of the men’s tennis team and as a member on the Student Athlete Advisory Council at University of Washington, Emmett qualified as the number one junior tennis player in the nation and a participant in all four junior majors (Australian, French, Wimbledon, and U.S. Open).

Daniel

Destined to become a lawyer, Dan is a Central Florida native surrounded by more than a handful of lawyers among his relatives – including his dad who was the City Attorney for a number of Central Florida cities and public entities, siblings, cousins, in-laws, and even children. But first Dan wanted to explore the ski slopes of the “wild west” after attending Duke University and before returning to his southern roots to attend the University of Florida Law School. While in college, Dan worked in high-end retail and as a rodman on a survey crew. With this surveying experience behind him, Dan ultimately found his passion in real estate law.

With a focus on business trends, Dan has successfully guided some of the most recognizable Central Florida companies through multi-site, multi-jurisdictional real estate acquisitions, financings, and dispositions. He advises clients on acquisition, leasing and financing, title review and survey analysis, environmental issues and zoning, with attention to every detail of these transactions – from document preparation, review of title commitments, endorsements and coverages, surveys, and closing statements, and all the negotiating and documentation in between. Clients include owners and lenders of shopping centers, retail stores, restaurants, gasoline and convenience stores, golf courses, ski resorts, hotels, and condominium properties.

In addition, Dan has negotiated and closed hundreds of high end residential transactions on sites throughout the southeast.

As a real estate leader in the firm, Dan’s mission has included building and mentoring efficient teams committed to the clients’ business success, echoed in his commitment to his community. A resident of Winter Park for many years, Dan has served in leadership roles on many civic, church, and charitable boards. A graduate and long-time participant in the Winter Park Chamber of Commerce Leadership Program, Dan served as its alumni association president, wrote its initial by-laws, and was a recipient of its Winter Park Chamber of Commerce Community Leader Award. His leadership role on the Winter Park Library Board is helping to bring the City’s vision of a new library and events center to life in Martin Luther King Park. Dan is also a past president of the Orlando Shakespeare Theater and has been a member of its Board for over 20 years.

James

A member of the firm’s Real Estate Group, Jim Kattelmann concentrates his practice on asset-based lending and securitization commercial leasing, hotel and resort development, land use, zoning and environmental, real estate transactions, development and finance, and timeshare services. He assists lenders in structuring, collateralizing, documenting and closing asset-based loans and pooling loans into term securitization programs.

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