Homeowner associations can't impose age rules


Article Courtesy of The Arizona Daily Star

By Howard Fischer

Published December 1, 2005

Homeowner associations can't turn their communities into senior housing simply by a board's amending its bylaws, the state Court of Appeals ruled Wednesday.

The three-judge panel said board members of a Tucson townhouse complex lacked the legal authority to decide three years ago to restrict occupancy to people age 55 and older. The judges said that kind of change has to be done by altering the deed restrictions.

In this case, the court said, that required the unanimous consent of all homeowners.

That is unlikely to happen: Stephen Weeks, attorney for homeowner William Wilson, said his client sued in the first place because he wants to be able to sell his unit to someone who is not yet 55.
Wilson and his mother purchased the unit in Playa de Serrano, near West Anklam and North Greasewood roads, seven years before the board voted in 2002 to make it an age-restricted community. The U.S. Department of Housing and Urban Development said the process complied with federal laws that exempt complexes from anti-discrimination laws and permit them to require that at least one resident be at least 55.
And when Wilson sued, Pima County Superior Court Judge Jane Eikleberry said the community had complied with federal law.
But appellate Judge Joseph Howard said that doesn't make what was done here legal.
He said that, generally speaking, restrictions can be imposed on what an owner can do with his or her property only when these are part of the original recorded declarations.
"If the recorded declaration does not contain or at least provide for later adoption of a particular restriction or requirement, that restriction or requirement is invalid," Howard wrote. And here, he said, there is nothing in the deed restrictions that lets the board later amend the bylaws to impose age restrictions.