Should Our Association Impose an Age Limit?
I recently had a conversation with a co-owner who has a second condo in Arizona wherein the association is contemplating amending the bylaws to state that ownership is to be limited to senior citizens only. My first thought is one of concern based upon a recent decision from the Arizona Court of Appeals which held that a homeowners association could not amend its bylaws to limit residency to people 55 or over even though the amendment complied with the Federal Fair Housing laws.
In the case at hand, the Court held that the association’s compliance with the Housing for Older Persons Act clearly established that it would not act illegally by enforcing an age restriction, but that such compliance did not mean that it had contractual authority or right to impose that requirement on its members in the first instance. The Court, in that particular case, felt that the rules and regulations governing the property in accordance with the bylaws did not authorize the implementation of an age based occupancy restriction. The Court further held that although the language of the declaration did allocate certain powers to the association and its board, “these powers are largely limited to constructing, managing, and maintaining the common areas, which we assume it owns, in enforcing the other rights and restrictions contained in the declaration.”
While this is somewhat of an anomaly, associations should be careful in terms of implementing such proposed restrictions, and should, of course, consult with counsel regarding state and local laws.