By: Charles A. Perkins, Jr., Esq.
A recent case involving a Cooperative Association attempting to evict tenants who failed to comply with the 55 and over requirement has led to the Housing Court in Weston, Massachusetts finding that the Association had no procedures in place to update the verification of the 55 and over occupancy requirement and that the initial qualification process alone was inadequate under the Housing for Older Persons Act (HOPA).
By way of background, HOPA requires that every two years an Association must re-verify the information generated by the original survey or other procedures to qualify for the 55 and over exemption. HOPA on its face requires that any of the following may be used for proof age:
• Driver’s License;
• Birth Certificate;
• Immigration Card;
• Military identification;
• Any other official government identification that shows a date of birth; and
• A document (such as an affidavit, certification in lease or purchase agreement, etc.) signed by any member of the household aged 18 or older asserting that at least one person in the unit is 55 or older. This document does not have to be signed under oath.
HOPA also allows an Association to rely on the following if a resident refuses to provide verification of age:
• Government documents such as a local government household census (not the national census) that show that the unit is occupied by a person aged 55 or older;
• Prior forms, applications or other information verifying the ages of unit occupants;
• Affidavits from individuals not in the household but who have personal knowledge that an occupant is 55 or older. The affidavit must state how the individuals have personal knowledge of the age of the occupant and be signed under the penalty of perjury.
With respect to the two years re-verification requirement, Associations are not required to obtain copies of documents already submitted by occupants for verification purposes, but they must confirm that those residents included in the initial verification continue to occupy the unit. Associations will meet the 55 and over requirement under HOPA so long as the immediate eighty percent (80%) of the units continue to meet that requirement.
In our experience, many Associations although required under the condominium documents themselves and certainly under HOPA, fail to re-certify and should take immediate strides to accomplish the 55 and over certification or re-verification.