Based on an Arizona court decision, Arizona “housing for older persons” communities must consider Fair Housing issues when enforcing their residency restrictions. In Canady v. Prescott Canyon Homeowners Association, the Arizona Court of Appeals ruled that “housing for older persons” community associations must waive their minimum age restriction and allow disabled individuals, regardless of their age, to reside in the community with persons who meet the age restriction.
Age-restricted communities often face a challenge in maintaining their legal status as a “housing for older persons community.” A common rule prohibits persons under a certain age (i.e., under 40) from residing in age-restricted communities.
Generally, under the Arizona and Federal Fair Housing Acts, it is unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to the buyer or renter because of a disability.
Discrimination also includes a refusal to make reasonable accommodations in the rules when such accommodations may be necessary to afford such person equal opportunity to use and enjoy the dwelling.
If an under-aged, disabled person wants to live in an age-restricted community with individuals who meet the age requirement, the issue is whether an association is required to refrain from enforcing its minimum age restriction as a reasonable accommodation. This creates a dilemma; whether waiving the minimum age requirement will jeopardize the community’s “housing for older persons” status. This was the dilemma faced by the association in Canady.
In Canady, the CC&R’s for Prescott Canyon Estates, an age-restricted community, required at least one person over 55 to reside in each unit and prohibited persons younger than 35 years old. The Canadys, who met the age restriction, attempted to purchase a unit in Prescott Canyon and live in the unit with their 26-year-old disabled son for whom they provided care. Prescott Canyon informed the Canadys that the restriction could not be amended or waived.
In response, the Canadys canceled the sale and filed a discrimination complaint with the Attorney General’s office. The Attorney General’s office investigated the claim and filed a lawsuit against Prescott Canyon alleging violations of the Fair Housing Acts for unlawfully discriminating against the Canadys due to their son’s disability.
In defending itself, Prescott Canyon alleged that allowing a person under the age of 35 to reside in the community is not a reasonable accommodation and would fundamentally alter the nature of the community by jeopardizing its “housing for older persons” status. The Court rejected Prescott Canyon’s arguments and ruled in favor of the Canadys.
The Court noted that even facially neutral rules may have to be changed to accommodate disabled persons and individual needs must be addressed. This may include not enforcing a restrictive covenant. Accommodations are reasonable unless they require a fundamental alteration in the nature of a program or impose undue financial and administrative burdens.
The Court held that because at least one of the Canadys was over 55 years old, the Canady household would be counted in and satisfy the requirement that 80 percent of units be occupied by someone at least 55, even though the son was 26. The Court also held that the association would not be abandoning its purpose for the community because by permitting the underaged son to live in the community, the association would avoid violating the Fair Housing Acts and would be attempting to comply with fair housing laws. Moreover, the exception would only apply to a limited group of people.
When confronted with similar situations, age-restricted communities should consider what accommodations are necessary to reasonably accommodate a person’s disability. The Court’s ruling in Canady gives age-restricted communities more guidance. FBN
By Jason Smith of Carpenter
The information contained herein is for informational purposes only and is not specific legal advice or a substitute for specific legal counsel. Readers should not act upon this information without seeking professional counsel.
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