JACKSONVILLE, Fla. – After News4JAX reported on a Jacksonville woman fighting to stay in the home she inherited in a 55-and-older community, viewers flooded social media with one question: How can someone legally inherit a home but not be allowed to live in it?
The answer, according to a Florida attorney who specializes in homeowners association law, comes down to the difference between ownership and occupancy.
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Bethany Michel, 28, has been battling her Arbor Mill homeowners association in Oakleaf since her father, a disabled veteran, died in 2023. Michel inherited the home after serving as her father’s caregiver, but the HOA argues she no longer meets the community’s age restrictions.
Ownership doesn’t automatically mean the right to live there
Alejandra Gonzales, a community association attorney with Ansbacher Law, said age-restricted communities that comply with state and federal law are legally permitted to restrict who may live in the neighborhood.
“As long as they’re following the requirements of federal and state law, they are allowed to have these sorts of restrictions,” Gonzales said.
The Arbor Mill declaration distinguishes between owning a home and occupying it. Another provision in the community’s governing documents requires every occupied home to have at least one resident who is 55 or older.
One section states: “No owner under the age of 55 may occupy a home unless the requirements of this section are met.”
Gonzales said that’s why Michel can legally inherit the property but may still be prohibited from living there.
“She can still own the property, and that’s why she could inherit the property via the transfer of title,” Gonzales said. “However, no owner under the age of 55 may occupy a home unless the requirements of the section are met.”
How the federal 80% rule works
Many viewers also asked whether federal law requires 55-plus communities to allow younger residents.
Gonzales said that’s a common misconception.
Under the federal Housing for Older Persons Act (HOPA), qualifying age-restricted communities must ensure at least 80% of occupied homes have at least one resident who is 55 or older. Communities must also be intended and operated for older adults.
If an association fails to meet those requirements, it could lose its exemption under federal and state fair housing laws, Gonzales said.
However, the remaining 20% does not automatically entitle younger residents to live in the community.
“We don’t know what their ratio is,” Gonzales said, referring to Arbor Mill. “Perhaps they have already met that remaining percentage.”
Whether the HOA can allow an exception depends on its governing documents and whether doing so would keep the community in compliance with federal law.
Special assessment vote
The legal dispute has also prompted a proposed $155,000 special assessment that would help pay the HOA’s legal expenses in the lawsuit against Michel.
Homeowners are being asked to vote on the assessment Tuesday evening.
Gonzales said, depending on the association’s governing documents, the board may have the authority to approve the assessment even if homeowners oppose it.
“The board may be allowed to impose that assessment on their own with a board vote,” she said.
Ultimately, Gonzales said, HOA board members are required to follow and enforce the community’s governing documents while complying with state and federal law.
The Arbor Mill HOA previously declined to comment on the lawsuit or the proposed special assessment.
News4JAX will update this story with the results of Tuesday night’s vote once they become available.