To create senior-specific communities, California carved out certain allowable restrictions in Civil Code Section 51.3 and its Riverside County-specific counterpart 51.11. Those statutes provide three distinct categorical definitions of people who can legally reside in communities designated for senior living:
- “Qualifying resident” or “senior citizen” means a person 62 years of age or older, or 55 years of age or older in a senior citizen housing development.
- “Qualified permanent resident” means a person who either meets the requirements of both (A) and (B) below or who meets the requirement set forth in (C) below:
(A) Was residing with the qualifying resident or senior citizen prior to the death, hospitalization, or other prolonged absence of, or the dissolution of marriage with, the qualifying resident or senior citizen.
(B) Was 45 years of age or older, or was a spouse, cohabitant, or person providing primary physical or economic support to the qualifying resident or senior citizen.
(C) A disabled person or person with a disabling illness or injury who is a child or grandchild of the senior citizen or a qualified permanent resident as defined in paragraph (2) who needs to live with the senior citizen or qualified permanent resident because of the disabling condition, illness, or injury.
- “Permitted health care resident” means a person hired to provide live-in, long-term, or terminal health care to a qualifying resident, or a family member of the qualifying resident providing that care. For the purposes of this section, the care provided by a permitted health care resident must be substantial in nature and must provide either assistance with necessary daily activities or medical treatment, or both.
Those three definitions – qualifying resident, qualified permanent resident, and permitted health care resident – are the only people allowed to reside in a designated senior community unless less restrictive qualifications are found in the CC&Rs. But what happens if the Association suspects that a community resident does not meet those definitions?
Only one published opinion exists in California that discusses the Association's rights to terminate an unqualified resident's tenancy, Huntington Landmark Adult Community Assn. v. Ross (1989) 213 Cal.App.3d 1012. In that case, the Court found that the grandson of a qualified resident did not meet the requirements of a qualified permanent resident as defined under the Civil Code. The grandson argued that he provided “primary physical support” for his grandmother, but the trial court made a factual finding to the contrary, which was supported by “substantial evidence.”
Unfortunately, the appellate decision in Huntington did not address what those facts were. Thus, senior communities are left with little guidance regarding what evidence would support a finding that a resident does not qualify under the statute. However, it is also clear that senior communities should aggressively safeguard their statutory age protections. Federal protections require that to maintain its protected status, a senior community must demonstrate its properties are at least 80% senior-occupied and that it maintains adequate age verification rules and procedures.
If a senior community suspects that a resident does not meet the statutory definition of a qualifying resident, a qualified permanent resident, or a permitted health care resident, it should call the owner to a hearing to gather information about the questionable residency. The Board should then determine whether the resident qualifies under the Civil Code. If not, the Board should take steps to terminate the resident's tenancy. That will likely include efforts to enforce the violation in the same way as any other governing document violation, which, of course, could ultimately lead to a lawsuit seeking to enjoin the violation.
In practice, this will almost always require input from the Association's legal counsel. If your community needs assistance with this issue, do not hesitate to contact our office.