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Associations and Aging Owners

“Most people want to age in place now,” adds White. “If you asked people, 98 percent of those surveyed will say they want to age in their own home. Knowing that creates a whole new reality. In the not–too–distant past, you had continuing–care retirement communities and over–55 communities. But statistics show interest in those communities is waning partly because of the expense and the desire to age in place.”

How will owners’ aging affect HOAs? First, legal challenges will increase. “Some issues might relate to needing more accommodations,” explains Kristen L. Rosenbeck, a partner at the Mulcahy Law Firm PC in Phoenix, which represents associations. “Owners may have disabilities arise as they age, so they may need more handicapped accommodations. Those would fall under the Americans with Disabilities Act and whether the HOA’s responses constitute reasonable accommodations. Boards will need to review requests and take concerns very seriously. Violations could create stiff penalties and very nasty litigation.”

In addition to legal issues, HOAs will face practical issues. “We’ll have issues of board governance with aging board members dealing with early–stage dementia or Alzheimer’s,” says White. “They’re also stressing existing HOAs, which are being faced with complaints like, ‘There’s a terrible smell of urine coming out of so–and–so’s condo unit and nobody’s seen her in several weeks. What do we do?'”

That question triggers privacy issues that HOAs will also increasingly face. “HOAs have various privacy laws they have to comply with,” says White. “What you can do as an individual homeowner to help somebody may be different than what an HOA can do. Boards will need to consult with their lawyer on those issues.”

Aging homeowners will also create needs for additional services. “Some owners can’t afford to move out, but they may need certain services,” explains White. “Are you going to create concierge services or some sort of service level for those people? You may live in an HOA with detached homes, where individual owners do their lawns. But it may be important to the community’s market value that the HOA contract for lawn services.”

One HOA’s Real–Life Problem

At her recent presentation, White was asked a question that brings the aging question into real life. “A lady said she’s in a three–story condo building with no elevator,” White recalls. “The unit owner in the top story is now having real problems going up and down the steps with her groceries and everything else. She asked whether the HOA had an obligation to put in an elevator for the third–floor owner and, if so, who should pay.”

The answer depends on the HOA’s governing documents. “The association’s role depends on the governing documents, and if your governing documents don’t provide guidance, you may need to amend them,” says White. “My guess is that an elevator would go into a common element or limited common element, and Virginia says you can create additional limited common elements. So should the HOA add an elevator? You also have to ask how the HOA addresses architectural changes. If you’re going to retrofit an older building, where would you put the elevator? What if you have to go up the outside of the building and create an elevator from scratch? Where’s the entry going to be, and will you be piercing siding?”

“The woman also explained that the third–floor resident recently had a health crisis, and the EMTs had a hard time getting up the steps with a stretcher,” adds White. “Then a duty–to–act analysis on the HOA’s part comes into play. It may not have the luxury it thinks it has thinking that an elevator is going to be an accommodation for just one person.”

“If the HOA adds the elevator, that benefits not just the residents on the third floor but the residents on the first and second, who would be impacted by the cost of paying for injuries that occurred without it,” White explains. “The property’s fair market value will be enhanced, too. So it may be that the entire association needs to pay for the elevator because all the owners will benefit. That’s an example of a good, tough question about the issues we’ll be addressing with more frequency.”

What Your HOA Can Do Today

Boards face challenges with aging owners in part because they often don’t have family members they can contact when a unit owner begins to need additional care, says Donna DiMaggio Berger, managing partner at Katzman Garfinkel & Berger in Ft. Lauderdale, Fla., who advises associations. “With the growth of aging in place, older people have been left in their homes though they really need to be in assisted living. Yet family members have moved or died, and the association doesn’t have anybody to reach out to address the condition.”

Start getting contact information today. “The way to tackle that is before it becomes an even bigger problem,” says Berger. “Boards should have a full list of family contacts when people move in. They should ask for three to four family contacts for siblings, children, or cousins and ask residents to update contact information each year. Then by the time residents are in their 80s, maybe you’ll have one viable contact. But just because you have contacts doesn’t mean those people will be willing to help. Sadly, we sometimes reach out to adult out–of–state children to tell them that mom or dad is deteriorating, and they don’t care. But at least you have some starting point.”

Berger’s law firm is also looking for ways to prepare its HOA clients. “My firm recently hired Bill and Susan Raphan, who have worked in the Florida Condominium Ombudsman’s Office since 2004 helping associations diffuse conflict between unit owners. One of the programs we want to roll out is mediation. Perhaps there’s an elderly person in the beginning stages of senility or dementia. That’s not going to be easy to deal with in the courts, but perhaps you can get that owner into a counseling session with the HOA and a family member, and issues may be worked out. That’s certainly a more humane approach to these issues.”

The key is to start thinking today about how your HOA will respond to aging residents. “I think we’re going to see the role of associations morph out of need,” says White. “This is real, and HOA’s need to start thinking about it. Aging in place affects us all. We need to plan for it socially, in our governance, and in the operational aspect of HOAs.”