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Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.
Can you tell me what state this is in?
Is the tenant under a fixed term lease or are they month to month?
How long have they lived there?
Ok, the problem here is that the tenant can enforce the lease for its full duration. The fact that it is against the HOA rules wouldn't affect the tenant's rights to enforce the lease. If their lease duration creates a problem with the HOA, that is something that you as a landlord have to deal with. The tenant isn't bound by any restrictions of the HOA regarding occupancy, only the landlord/owner is. So if they have a contract for XX months, they can enforce it, even if it puts you in violation of the rules of the HOA.
So your can try to give the tenant a notice that they need to leave and you will refund, but if they refused to leave, they are legally in the right here and you couldn't force them to vacate until their fixed term lease was up..
I am very sorry that I don’t have better news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers based on my knowledge and experience, even when I know the answer doesn’t make the customer happy...
As an aside, in addition to being an attorney, I have also been a landlord for over 26 years...
Ok, that is a difficult situation if you are the owner/landlord. But unless this is a 55+development, prohibiting children would likely be a violation of the Fair Housing Act it you wanted to challenge it.
But if the tenant refused to leave, you are in a tough place because that legally puts you in breach if they won't allow the tenant access to the property.
Have you considered entering into two separate leases under different names to get around the restriction....maybe one lease under father's name and one under mother's name...so two separate leases that wouldn't violate the questionable rule?
Ok, then legally they can prevent children.. So your best recourse here is to see if the tenant will agree to voluntarily terminate their tenancy and move. If not, they can enforce the lease and you are stuck with whatever penalties the HOA imposes.
55+ communities can legally discriminate against under 55 people under federal law...