Phil Querin Q&A - Two Question on Children and 55 & Older Communities

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September 28, 2016
Phil Querin
MHCO Legal Counsel
Querin Law

Question One:   If a community is a legal 55+ park, is it still subject to the federal and state laws prohibiting discrimination against children?  

Question Two:  If the current rules in a family community appear to be discriminatory towards children – e.g. they place restrictions that have a discriminatory impact on children or persons with children (e.g. curfew on children, even if it’s intended to be for their own safety) can the landlord unilaterally amend the rules, or does he/she need to go through the formal rule change process outlined in the ORS 90.610?

 

 

Answer to Question 1:  Generally, no. However, this isn’t a license to be rude to them.  Let’s start with the basics:  If you are a legal 55+ community, you are not required to admit as residents, persons with children, i.e. those under the age of 18.  If there are children in the community (perhaps before the facility converted to 55+, or simply because less than 20% of all spaces are occupied by persons with children), the park may do things that it could not do if it was a family park, such as prohibit children’s Big Wheels and bicycles in the street.  Generally, however, the best approach is to strive for 100% compliance with the 55+ laws in terms of occupancy.  If you want to be a “safe” 55+ community, you will have rules that expressly say so; a rental/lease agreement that expressly says so; application and tenant home sale provisions that limit spaces to at least one occupant 55+; and generally hold yourself out in all advertising as a 55+ community.  Of course, seniors are permitted to bring children (e.g. grandchildren, etc.) into the community, but the rules may place limits on the amount of time they may remain there. 

Answer to Question 2:  You need to go through the formal rule change process described in the statute.  A rule that is not legally enacted, isn’t really an enforceable rule.  However, you should immediately issue a written notice to all residents that based upon legal advice, those rules (identifying them) that appear to be discriminatory against children, will not be enforced.  If you own a family park and are concerned that your rules may appear to “target” children, you should consult with your attorney for advice on how to proceed.  Note that even if your rules don’t appear to target children, if they, in fact, affect the activities of children more heavily than adults, they could still be deemed to be discriminatory (e.g. occupancy limits).  And if you are a family park, but you have over 80% of the spaces occupied by at least one person age 55 or over, you should ask your attorney about “converting” to become a legal 55+ community.  Until you do, even though 99% of the community’s spaces are occupied by seniors, you’re still a family park, and subject to the anti-discrimination laws protecting children.