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posted: 6/14/2014 12:01 AM

Senior communities can legally prohibit children

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Q. My husband and I live in an over-55 community. We would like our infant grandson to live with us until he is school age. However, the association's governing documents prohibit "all persons under 21 from being a resident." Do you think we should be able to get a hardship waiver of this regulation?

A. The Fair Housing Act exempts "housing for older persons" from the law's prohibition of excluding families with children. There are two categories of housing for older persons.

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Under the first, 100 percent of occupants must be 62 years or older. Under the second category, at least 80 percent of the occupied units must have at least one person living there who is 55 or older.

While the Fair Housing Act's exemption for a 55-and-older community would allow a minor under the age of 18 to reside in a unit, it does not require a community to allow it. This issue is one governed by private contractual agreement, like the declaration for your association. As such, the covenant prohibiting occupancy by any persons younger than 21 would be valid.

Whether or not you may seek a waiver would depend on whether the governing documents for your association provide for such a process.

Q. The board of our association prepares an agenda for each board meeting. At a recent board meeting, the board voted on a matter that was not on the agenda. One of the board members abstained from voting, claiming the vote on the issue was not permitted because this topic was not on the agenda. Is this correct?

A. A typical provision of an association's governing documents requires that notice of a meeting recite the date, time, place and purpose of the meeting. Therefore, the scope of the matters that can be addressed at a board meeting is governed by the content of the notice -- not by the agenda.

Unless the board intentionally wants to limit the scope of a meeting, the notice of a board meeting should generally recite that the purpose is to consider any matter that properly comes before the board.

An agenda is usually more of planning tool for the meeting, and helps keep the meeting on track. Items can often be added to the agenda at the meeting. That said, occasionally an association's governing documents require that an agenda be provided with the meeting notice.

Inclusion of the general purpose language discussed above for the meeting notice will permit the board to consider and vote on matters not specifically described on the agenda.

Q. The declaration for our common interest community association was recorded in 2003, and the association is an Illinois not-for-profit corporation. The annual assessments for the association raise less than $100,000. The board of our association has advised the owners that this means the association is exempt from the Common Interest Community Association Act. Is there such an exemption?

A. Yes. The Common Interest Community Association Act does include an exemption for small common interest communities. A common interest community association organized under the general not-for-profit corporation act of 1986 and having either 10 units or less, or annual budgeted assessments of $100,000 or less, is exempt from the act.

That said, a small common interest community association can elect to be covered by the act. This requires the approval, by a vote at a meeting, of a majority of the association's directors or of the association's members. This is found in Section 1-75 of the act. The board should consult with its attorney to consider the benefits of electing to be covered by this law.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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