“Aging In Place: Considerations for HOA and Condo Associations” – KSN attorney David Savitt discusses the growing trend of aging in place and its impact on condominium, homeowner (HOA), and townhome community associations. Topics include immobility issues, accessibility concerns, ADA regulations, resident safety, caregivers, board member considerations, potential association rule updates, best practices, and more. (10 mins.)
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Episode Transcription
Bernie: You are listening to the KSN podcast, and today we’re talking about considerations for community associations regarding aging residents. Welcome to the KSN podcast, where you’ll hear from KSN attorneys as they share their experience and insight on legal issues surrounding community associations, property tax appeals, and landlord tenant law. I’m Bernie, and today we’re joined by KSN attorney David Savitt. Dave Practices condominium, townhome and homeowner Association law in the city of Chicago and the surrounding suburb advising clients and property managers on how to stay on top of the many legal requirements across the spectrum. Dave, welcome to the podcast.
Dave: Hi, Bernie. It’s great to be here.
Bernie: Our topic today, aging in place, some considerations that board members, property managers, community association leaders need to be aware of as it relates to aging residents. So, let’s get into it. What exactly does aging in place mean, Dave?
Dave: Well, that’s a great question, Bernie. Aging in place refers to the ability of a homeowner to remain living in their own house and community independently as they age, rather than moving to a retirement or an assisted living facility. Residents may have several reasons for wanting to stay in their homes. Motivations may include comfort, autonomy, safety, and proximity to social connections.
Bernie: And while again, we’re not experts on aging or demographics, but a few trends that we have seen, and again, aging in place seems like a trend that is not slowing down. In 2019, about 16.5% of the American population was over 64 years old, and by comparison, that number is projected to reach 22% by 2050. So, this is a stark contrast to, for example, 1950 when you only had 8% of the population that was over 64 years old. Lots of numbers, but again, just to show aging in place is going to continue to rise. And with these figures in mind, how should condo, HOA associations consider that aging population when they’re evaluating, say for example, community association policies?
Dave: Well, there are several areas that an association should address when evaluating their policies to protect both themselves and their residents. One area is addressing the potential immobility and accessibility issues aging residents may face. Residents are protected under the Federal Fair Housing Act and the Americans with Disabilities Act. Under the Federal Fair Housing Act, an Association may not legally refuse to make reasonable accommodations in its rules or policies when such accommodations may be necessary, for example, to accommodate a disabled owner to fully enjoy and use their home. This could range from installing handrails, having wheelchair ramp access, providing closer parking for disabled residents, and granting waivers to a no pets policy to allow for service or emotional support animals. The immobility of some elderly residents may impact their ability to access common areas. As a result, board members and property managers may need to be mindful of ADA requirements to provide access to association amenities such as the clubhouse, fitness centers and pool areas.
Bernie: We’re talking about potential concerns regarding safety of elderly residents, particularly when we’re talking about these issues. They’re sensitive and difficult subjects, right, Dave?
Dave: That’s right, Bernie, for example, a homeowner impacted by health issues may continue to drive but may be a safety risk to others within the community. Additionally, a resident who develops dementia or Alzheimer’s may have difficulty finding their way home, causing them to wander throughout the neighborhood. I have seen in my practice situations where property managers have reported to us that residents do have dementia and think they may be living in a different time or may have different responsibilities, such as a job that they no longer have and they approach management under the belief that they need to go to their job or need certain accommodations that they don’t otherwise need and that puts the manager in a really tough position.
Bernie: So, speaking of property managers, property managers and board members have to keep in mind the association’s responsibilities, their duties, respecting owner privacy, but again, sensitive difficult subjects. How do you best balance association responsibilities and potentially elderly resident issues?
Dave: Well, and that’s tough, but a good practice would be to collect contact information for everyone in your community, including the elderly residents. This information collected at move-in and updated periodically could prove useful for contacting family members should health or safety concerns or issues arise within your community. Association leaders can also familiarize themselves with local social services, including asking the police to perform a welfare check on an elderly owner. Consulting with the association’s attorney will clarify how rules and regulations can be enforced in these sensitive situations before they become liability risks.
Bernie: When we’re discussing an aging population, aging in place, one of the factors, Dave, that I think associations have to consider is potentially having a live-in care provider that’s coming in to assist the homeowner. Again, other issues that come up that may be unique to that community.
Dave: Right, and the key there is familiarity with your association members because being familiar with your other members in the association can help reduce issues related to caregivers or other support workers visiting elderly residents who may appear from time to time. Accommodation within an association’s rules and regulations may need to be made for live-in care or caregiver access. This could include occupancy limitations, parking, or access to units, and may include such things as use of a key card or access codes to make sure that residents who need these services are able to get them in a timely manner.
Bernie: Again, all of this impacts every member of the association, every unit owner, whether they are elderly, whether they are younger, they are members of the association and because of that, there are responsibilities that involve attending meetings, voting. There could be virtual meetings where people use technology such as Zoom, but again, you have proxy voting, a lot of different moving parts. You work with hundreds of associations, Dave, hundreds of property managers and board members, so how does aging in place impact communications, voting, meetings?
Dave: Look, while it’s important to evolve with the changing desires of new generations of homeowners, the association must keep in mind that it needs to accommodate all of its residents and not exclude members based on their chosen method of communication. This can impact the use of virtual meetings, digital distribution of materials, or establishing an online presence for the association on websites or social media. Laws do vary by state. I happen to practice in Illinois and for example, the Illinois Condominium Property Act states that board members may adopt rules and regulations to authorize the electronic distribution of notices and other communications to unit owners who provide written authorization for electronic delivery. However, the board must continue to provide physical copies to unit owners who choose not to receive those communications digitally. So, it’s important to contact your legal team to ensure that you are acting in accordance with all the state laws and local ordinances regarding communication and voting changes because they can be tricky.
Bernie: KSN is committed to educating our clients and the community. As a service to our current and prospective clients, we’ve authored and compiled a number of educational resources for condo, HOA board members, property managers, landlords, and real estate professionals. If you visit ksnlaw.com/education, you’ll be able to review our educational resources, including articles, legal updates, booklets, podcasts, laws and ordinances and more. You can also sign up for the KSN newsletter where over 30,000 peers receive free industry news, legal updates, and details on our upcoming events.
Bernie: Along with voting, meetings, access to potentially digital documents, Dave, another issue that could impact residents, especially if they’re aging in place, would be their financial status and what considerations need to be given to them as far as their finances are concerned.
Dave: I think there’s no question that when you have an elderly population within your association, financial considerations and accommodations need to be considered. For example, a resident may be on a fixed income and unable to afford a large pavement that’s being levied to address things like deferred maintenance or emergency repairs or unbudgeted association expenses. So, while board members all do have a fiduciary obligation to administer and maintain property values, they need to be realistic, and they need to consider creating payment plans for elderly residents that are operating on limited budgets. Each community though is unique and that’s important to remember. So, it’s critical to discuss assessment, collection and other financial concerns with the association’s accountants, management, and of course the legal team as well.
Bernie: So, as I mentioned before, the trend is not stopping. We see residents that are aging in place and outside of updating their governing documents, looking at the rules, their policies, their regulations, Dave, what are some other best practices associations may need to address?
Dave: Well, I think here’s the bottom line, Bernie, understanding the demographics of your community association can allow the board to draft policies that can best serve the needs of all of its residents. Creating open lines of communication may encourage members, including those that are elderly, to discuss their specific needs with the board and management. As the aging in place trend becomes more and more common, board members should proactively engage their associations, legal counsel to better understand their rights, obligations and duties. This will ensure that the board has the appropriate policies and procedures in place as their community ages.
Bernie: That was case an attorney David Savitt. Contact our law firm if your condominium, homeowner, or townhome community Association has questions regarding aging in place concerns, liability provisions in your governing documents, legal requirements, or other legal concerns. KSN is an experienced legal resource ready to provide you with quality advice and exceptional service. We look forward to demonstrating how we’ve earned the trust of thousands of clients since 1983. If you’d like to reach David or any of KSN’s experience attorneys, please call 855537-0500. You can also visit ksnlaw.com and complete the contact form to send us a message. Thanks for listening.
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Please note the material contained on the KSN Podcast is for informational purposes only and does not constitute legal advice. No attorney-client relationship is established by your review or receipt of the information contained on the KSN Podcast. You should not act on the information discussed on the KSN Podcast without first obtaining legal advice from an attorney duly licensed to practice law in your State. While KSN has made every effort to include up-to-date information on The KSN podcast, the law can change quickly. Accordingly, please understand that information discussed on the podcast may not yet reflect the most recent legal developments. Material is not guaranteed to be correct, complete, or up to date. KSN reserves the right to revise or update the information and statements of law discussed on the podcast at any time, without notice, and disclaims any liability for your use of information or statements of law discussed on the podcast, or the performance of the podcast generally. The KSN Podcast may be considered advertising in some jurisdictions under applicable law/s and/or ethical rules/regulations. © 2023 Kovitz Shifrin Nesbit, A Professional Corporation.