Category Archives: Senior Communities

Caregivers within Senior Communities

Civil Code Section 51.3 (and Section 51.11 for communities within Riverside County) provides senior communities located within California the authority to implement and enforce age-restrictions for their residents. (See “Senior Communities.”) Those restrictions must include a requirement that each unit be occupied by at least one “qualifying resident”—meaning a person 62 years of age or older, or 55 years of age or older depending on the category of the senior community. (Civ. Code §§ 51.3(b)(1), 51.11(b)(1).) However, Civil Code Sections 51.3 and 51.11 also allow for other categories of persons whom do not meet the standard of a “qualifying resident” to also reside in a unit with a qualifying resident. (Civ. Code §§ 51.3(c), 51.11(c).) One of those categories includes “permitted health care residents” (i.e., caregivers).

“Permitted Health Care Resident” Defined
A “permitted health care resident” is defined as a person hired to provide live-in, long term, or terminal health care to a qualifying resident, or a family member of the qualifying resident providing that care. (Civ. Code §§ 51.3(b)(7), 51.11(b)(7).) The care provided by a permitted health care resident must be “substantial in nature,” and also must provide either medical treatment or “assistance with necessary daily activities,” or both. (Civ. Code §§ 51.3(b)(7), 51.11(b)(7).) Notably, neither Section 51.3 nor 51.11 set forth any restrictions on the age of permitted health care residents.

Continuation of Occupancy in the Absence of Qualifying Resident
When a qualifying resident temporarily vacates a unit, the qualifying resident’s permitted health care resident has limited rights to continue his/her occupancy, residency or use of the unit if both of the following are applicable:

  • The qualifying resident’s absence was due to hospitalization or other necessary treatment, and the qualifying resident expects to return to the unit within ninety (90) days from the day the absence began; (Civ. Code §§ 51.3(b)(7)(A), 51.11(b)(7)(A)) and
  • The absent qualifying resident (or his/her agent) submits a written request to the association’s board of directors stating that the qualifying resident desires that the permitted health care resident be allowed to remain in order to be present in the unit when the qualifying resident returns. (Civ. Code §§ 51.3(b)(7)(B), 51.11(b)(7)(B).)

Discretionary Extension of Time
In addition to the foregoing, upon a written request from the qualifying resident (or his/her agent), the board has the discretion to allow a permitted health care resident to remain in the unit for any additional ninety (90) days from the day when the qualifying resident’s absence began, but only if it “appears that the [qualifying resident] will return within a period of time not to exceed an additional 90 days.” (Civ. Code §§ 51.3(b)(7), 51.11(b)(7).)

Compensation of Caregivers
The rights of a permitted health care resident to occupy the unit extends to periods of time when the permitted health care resident is providing care to a qualifying resident “for compensation.” Compensation does not solely include monetary payment, but may also include “provisions of lodging and food in exchange for care.” (Civ. Code § 51.3(j).)

Senior Communities

Senior communities (aka “active adult” communities) engage in a form of discrimination through the imposition of age restrictions for their communities. The legal authority for senior communities to do so is provided under both federal and state statutes.

Federal Statutes: FFHA & HOPA
The Federal Fair Housing Act prohibits discrimination in the sale, rental and financing of residential of dwellings based upon familial status. Its provisions generally bar restrictions in an association’s governing documents (i.e., its CC&Rs) that serve to exclude children from the association’s development. In 1988 Congress created an exemption to the provisions barring discrimination on the basis of familial status for those housing developments that qualified as housing for persons age 55 and older (senior communities). This exemption was then refined through the Housing for Older Persons Act of 1995 (HOPA). HOPA is administered through by Department of Housing and Urban Development (HUD).

Qualification Requirements
To qualify as a senior community, a housing development or homeowners association must satisfy the following requirements:

  • At least eighty percent (80%) of the occupied properties must have at least one occupant that is 55 years of age or older;
  • The association must publish and adhere to policies that demonstrate its intent to operate as a senior community for persons 55 years of age or older; and
  • The association must comply with age-verification procedures to ensure compliance with the age requirements.

Prior Failure to Comply with Age-Verification Requirements
If an association has consistently maintained the required 80% threshold but has previously failed to comply with HOPA’s age-verification requirements, that in itself will not disqualify the association from being afforded HOPA’s protections. (Balvage v. Ryderwood Improvement Services Assn. (9th Cir. 2011) 642 F.3d  765.)

California Statutes: Unruh & Civil Code § 51.3
California has provided protections against discrimination through the Unruh Civil Rights Act found at Civil Code Section 51. An exemption for senior citizen developments similar to that provided under HOPA is codified at Civil Code Section 51.3. Section 51.3 generally requires that an association’s CC&Rs set forth the limitations on age, where such limitations require that:

  • Each unit must be occupied by at least one (1) “senior citizen” or “qualifying resident,” and
  • Each other resident within a unit must be either a “qualified permanent resident,” a “permitted health care resident,” or another person whose occupancy is permitted under Civil Code Section 51.4(b). (Civ. Code § 51.3(c).)

“Senior Citizen” and “Qualifying Resident” Defined
Civil Code Section 51.3 defines a “qualifying resident” or “senior citizen” as a person 62 years of age or older, or 55 years of age or older depending on the category of the senior community. (Civ. Code § 51.3(b)(1).)

“Qualified Permanent Resident” Defined
Civil Code Section 51.3 defines  a “qualified permanent resident” as a person who meets both of the following requirements:

  • Was residing with the qualifying resident prior to the qualifying resident’s death, hospitalization or other prolonged absence, or prior to the dissolution of marriage with the qualifying resident; (Civ. Code § 51.3(b)(2)(A)) and
  • Was 45 years of age or older, or was a spouse, cohabitant or person providing primary physical or economic support to the qualifying resident. (Civ. Code § 51.4(b)(2)(B).)

A qualified permanent resident also includes a disabled person who is a child or grandchild of the qualifying resident or a qualified permanent resident who needs to live with the qualifying resident or qualified permanent resident because of the disabled person’s disability. (Civ. Code § 51.3(b)(3).)

“Permitted Health Care Resident” Defined
Civil Code Section 51.3 defines a “permitted health care resident” as a person hired to provide “substantial” live-in, long term, or terminal health care to a qualifying resident (i.e., a caregiver), or a family member of the qualifying resident providing that care. (Civ. Code § 51.3(b)(7).) Section 51.3 also provides some limited rights for permitted health care residents to continue residing in the unit in the absence of the qualifying resident. (Civ. Code § 51.3(b)(7); See also “Caregivers within Senior Communities.”)

Senior Communities within Riverside County: Civil Code § 51.11
The provisions of Civil Code Section 51.3 are essentially mirrored in Civil Code Section 51.11. Section 51.11 is applicable only to senior communities located within Riverside County. (Civ. Code § 51.11(j).)

Enforcement
Once a senior community has been established, its age restrictions are legally enforceable. (Huntington Landmark v. Ross (1989) 213 Cal.App.3d 1012.)