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TJ, Esq.
TJ, Esq., Attorney
Category: Real Estate Law
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Experience:  JD, MBA
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We are a small North Carolina8 unit condo and feel that we want to be a 55 or over or just a no children complex. Just not suitable for children. We do know that any change in our covenants requires a special meeting and a 2/3 vote..which is 6 votes. My main question is that any who would vote no to it would be automatically 'grandfathered' in at all law and not subject to the new status? If this is correct would that mean that those who voted not and subsequently then sold that the new status would be effective for them? Did I phrasew all correctly?
Hello and thank you for allowing me the opportunity to assist you.

Before answering your specific question, I'll point out that it would be illegal to create a "no children" complex. That violates fair housing laws. However, it is possible to create a "55 and older" community. In order to do so, the properties must already be 80% occupied by people 55 and over (which in your case means 7 of the 8 units).

In answer to your specific question, the answer is yes, that the one unit which would not have a 55 or older occupant would be able to remain. They certainly could not be forced out of their unit. But since the law would allow that 55 or older status with 80% of the units, that person in the one lone unit could indeed sell to somebody under 55 since the condo would still be 80% 55 and older.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is much appreciated. Thank you for using our service!

If you would like to direct additional legal questions to me in the future, then please type "To VAMD" in the subject line of your question.
Customer: replied 3 years ago.


I believe I understand you reply..let's make certain...


 


No children is illegal.


 


We presently must have 80% - 7 owners over 55 for the change?


 


But our covenants says a Special Meeting required for any changes and voted on with a 2/3 (6) vote for approval of a change. Then the neccesary changes to our legal documents would need to be taken care of by legal counsel.


 


The other part of the questions was regarding any no votes to the change..(max 2) would automatically be grandfathred in as not being subject to the 55 and over change..correct? And would subsequent buyers of those properties follw the grandfathered in or would the following buyers then be subject to the 55 and over? This is not clear to me.


 


Thank you

Hi again.

You wrote: But our covenants says a Special Meeting required for any changes and voted on with a 2/3 (6) vote for approval of a change. Then the necessary changes to our legal documents would need to be taken care of by legal counsel.

Response: If there is a clash between Federal law and your covenants, then Federal law prevails.

Regarding grandfathering, that is not quite right. First, I should have pointed out that the requirement is with regard to occupants, and not necessarily units. I was thinking one occupant per unit, but obviously that it not necessarily the case. In any event, the unit itself is not exempt. If 6 of the units suddenly make up more than 80% by themselves, then two of the other units may be able to get away with having people under 55. So, it could go from one unit to two units with people under aged 55, and that would be fine so long as the 80% rule remains in effect. If it falls below 80%, then the fair housing laws apply and discrimination based upon age would no longer be allowed. So it's important for the residents to maintain the 80% themselves.
Customer: replied 3 years ago.


Still some confusion..evidently this Federal Law 80% 55 and over is newer than our covenants and is now effective!


 


You are saying it is now the OCCUPANTS, Not the number of units for the 80% count???


 


What about any units that are not occupied, but owned and either going to be sold or rented. Are they counted as to the age of the owner, or just not counted, because they are not occupied?


 


So, subject to last question, you count all the people that are actually living here and then compute the %???


 


 

Hi again.

Q: You are saying it is now the OCCUPANTS, Not the number of units for the 80% count???
A: Yes. Actually, I always stated occupants. In my original answer I wrote: "the properties must already be 80% occupied by people 55 and over." But afterward I began talking as though each unit was occupied by just one person, and that is obviously not the case, so I apologize for any confusion.

Q: What about any units that are not occupied, but owned and either going to be sold or rented. Are they counted as to the age of the owner, or just not counted, because they are not occupied?
A: The age of the occupant is what is relevant. Accordingly, if the owner does not occupy the unit, then the tenant's age would be relevant to the 80% requirement.

Q: So, subject to last question, you count all the people that are actually living here and then compute the %???
A: Yes.
Customer: replied 3 years ago.

OK..just be certain..the unit that is not occupied by anyone, as it is either going to re sold or rented. So, for the present time there would be nothing to count...only when it is sold or rented would it be changed by the occupants at that time...which for selling they would have to be 55 or older, IF this change is made for that type of complex?


Now. assuming that we have the correct 80% 55. we just need to have a meeting and vote that we wish to become a 55/80% complex and then have our legal counsel add the amendment to our covenants?


 


We would notify the owner of the apt that is probably going to be for sale that it must be sold to a 55 or over and a present one who is going to sell when the present lease is up with present trenants will need to be sold to a 55 an over.


 


Am I now orrect in my understanding???

Hi again.

Yes, I think that's about right, except I don't believe that you can dictate that the owner be 55 or older ... just the occupant.
Customer: replied 3 years ago.

OK...If an owner decided to sell their unit, it can be sold to someone of any age, but the occupants MUST be 55 or older. Is that correct? This is after we make the change to the 55/80%.


Can you send me via email all my questions to you along with your answers?

Hi again.

That is correct.

As for email, I'll have to contact customer support as I cannot email you.
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