Courtesy of The Arizona Daily Star
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
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.