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From FMO NEWS-MARCH 2002

ARE 55 + MOBILE HOME PARKS AN ENDANGERED SPECIES?

By Louis S. St.Laurent II

Louis S. St.Laurent II is a Former Chief Assistant State Attorney of the Twentieth Judicial Circuit of Florida and presently serves as Legal Counsel to Districts 12, 12A and 7 of the FMO. He practices law in Coral Springs and is President of ?Le Soleil de La Floride? Florida?s largest French newspaper.

This past year several park owners have converted their 55 + parks (housing for older persons) into family parks. There are presently three lawsuits in Palm Beach County filed on behalf of mobile home park residents against park owners contesting the park owner?s right to convert a 55 + park into a family park without the consent of all the residents of the park.

The federal fair housing provisions of Section 3607 of Title 42, U.S.C.A., recognized the special needs of the senior citizens of this nation by allowing an exemption from the age discriminations laws for communities who qualify as A housing for older persons@ and permitted those communities to restrict or completely prohibit residents in such communities who were not of the age of 55+ or older.

The State of Florida (Chapter 760.29, Florida Statutes) also recognized the special needs of our senior citizens by allowing A housing for older persons@ and adopting the age discrimination exemption enacted by the federal government.

42 U.S.C.A. Section 3607, further required that for a community to qualify as a Ahousing for older persons@ (55 + ), the community have at least 80 percent of the occupied units occupied by at least one person who is 55 years of age or older and provide verification of such ages by reliable surveys and affidavits. U.S.C.A. s. 3607 and Section 760.29, Florida Statutes, further requires that Aunoccupied units@ must be reserved for occupancy by persons who meet the age requirements of 55 years of age or older.

The language creating the 55 + age restriction is usually contained in either the main body of the park prospectus or in the rules and regulations attached to the prospectus. In most of the prospectus the age restrictions is contained only in the park rules and regulations. The typical language in a park?s rules and regulations creating the age restriction is usually words such as ?All households commencing residency whether as home owners, renters or licensees must include at least one member of the resident household who is 55 years of age or older.? The age of ?55 or older? must be stated specifically in the park?s prospectus or rules and regulations to create a right to have an age restriction under HUD and such general words in the prospectus restricting residents of the park to only ?adults? does not comply with the requirements of HUD.

In cases where the age restriction language is contained in the main body of the park?s prospectus (as opposed to being contained only in the rules and regulations) there does not appear to be any claim by park owners that they can change the age restriction and convert their park into a family park.

The park owners have apparently taken the legal position that when the 55 + age restriction is contained only in the park?s rules and regulations, the age restrictions can be removed from the rules and regulations without the consent or approval of the residents as long as the park owner sends out the 90 day notice required under Section 723.037. Their legal argument may be based on this same section which permits the park owner to send a 90 day notice to change the park?s rules and regulations. In addition Section 723.005 specifically states that the state does not have the authority to enforce a mobile home park?s rules and regulations.

There are several provisions in Chapter 723 supporting the rights of residents against the park owner when the park owner decides to turn his 55 + park into a family park. Section 723.016, Florida Statutes, provides that no advertising materials or oral statement made by any developer, park owner, or mobile home dealer shall misrepresent a fact or create a false or misleading impression regarding the mobile home or mobile home park. It also states that no park owner shall misrepresent the size, nature, extent, qualities, or characteristics of the offered facilities. Any changes by a park owner from a 55+ park to a family park affects the qualities and characteristics of the residents who moved into this park only because they desired to live in a community advertised and operated as a facility for older persons (55+ parks ). Park residents, under Section 723.017, Florida Statutes, who moved into a mobile home park, in a reasonable reliance upon any material statement or information that is false or misleading and published by or under the authority from the park owner, are allowed to rescind the contract or collect damages from the park owner for her or his loss. That would include the costs of relocating the mobile home to another park.

A park owner may also be violating the provisions of Section 723.021, Florida Statutes, in eliminating the age restriction, as that section states that every rental agreement imposes an obligation of good faith and fair dealings. Section 723.037, Florida Statutes, provides that the residents may contest a change of the rules and regulations as being unreasonable.

Therefore park owners cannot exercise their right to change the existing rules and regulations in an unreasonable manner and the courts in Palm Beach are being asked to rule that changing the rules and regulations of a mobile home park in order to convert a 55 + park into a family park is not only unreasonable but substantially changes the quality and character of the mobile home park in violation of Chapter 723.

In addition there is a breach of an implied agreement between the park owner and the residents when the park owner eliminates the age restrictions in a park without the consent of all of the residents. It is important that any mobile home park, who is at risk of losing it?s status as a 55 + living facility, request from the park owner or manager the right to inspect the survey of the ages of the park residents to verify that the park meets the 80 % requirement and is still qualified for the age exemption under HUD. This right to inspect the park survey is granted to everyone under the HUD rules passed in 1999.

Section 723.031, Florida Statutes provides that ? No rental agreement shall contain any rule or regulation prohibited by this chapter, nor shall it provide for promulgation of any rule or regulation inconsistent with this chapter or amendment of any rule or regulation inconsistently with this chapter.

In addition Section 723.017, Florida Statutes, states that any person who pays anything of value toward the purchase of a mobile home or placement of a mobile home in a mobile home park in reasonable reliance upon any material statement or information that is false or misleading and published by or under authority from the park owner or developer in advertising and promotional materials, including, but not limited to, a prospectus, the items required as exhibits to a prospectus, brochures, and newspaper advertising, shall have a cause of action to rescind the contract or collect damages from the developer, park owner, or mobile home dealer for her or his loss.

Section 723.032, Florida Statutes, states that any provision in the rental agreement is void and unenforceable to the extent that it attempts to waive or preclude the rights, remedies, or requirements set forth in this chapter or arising under law. In some of the park prospectus the language on the 55+ age restriction is also contained in the blank lease or rental agreement attached to the prospectus. In those cases the attempt by the park owner to change the park?s rules and regulations eliminating the 55 + age restriction does not automatically change the 55 + age restriction language in the blank lease so the residents have additional grounds to fight the park owner?s attempt to convert the park into a family park.

It is therefore important that the park?s homeowners? association maintain a file with copies of all past and present advertising, brochures, pictures of entrance signage showing the 55+ requirements, correspondence, age surveys, so that the association can address the problem if it ever receives a 90 day notice from the park owner proposing a change in the park?s rules and regulations eliminating the 55 + age requirement.

Submitted by Louis S. St.Laurent II. The legal opinion and analysis in the above article are not necessarily those of the FMO or its publisher. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask for written information about the lawyer?s qualifications and experience.