Beyond Sleepovers: Understanding "Occupancy" in Age-Restricted Communities

1. Introduction: The Maricopa Dispute

In the manicured cul-de-sacs of Province, a planned community in Maricopa, Arizona, the marketing slogan "retire like you mean it" isn't just a lifestyle pitch—it is a contractual promise. Developed by Meritage Homes Corporation, Province is the only 55+ age-restricted community in the city. However, a significant ruling by the Arizona Office of Administrative Hearings in the case of Province Community Association vs. Caroll Gaines (No. 16F-H1616007-BFS) has redefined what it means to "reside" in such a community.

The dispute centered on whether a homeowner, Caroll Gaines, violated the association's Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by allowing her minor great-grandchildren to be present in her home for nearly every waking hour. While the homeowner argued that no violation occurred because the children did not stay overnight, the Association contended that their consistent, long-term presence constituted prohibited occupancy. Administrative Law Judge (ALJ) Diane Mihalsky was tasked with determining where "visiting" ends and "occupying" begins.

2. The Rules of the Road: CC&Rs and Age Restrictions

The legal integrity of an age-restricted community relies on strict adherence to the federal Housing for Older Persons Act (HOPA). To maintain this status, Province operates under specific CC&Rs that limit the presence of younger individuals.

The heart of the legal conflict lies in Article 3, Section 3.1(b):

Age Restricted Housing. PROVINCE is intended to provide housing primarily for persons 55 years of age or older, pursuant to HOPA . . . .¹ The Property shall be operated as an age restricted community in compliance with any and all applicable Arizona and federal laws. Subject to the foregoing, persons under 19 years of age may stay overnight in a Unit for up to 90 days during the year, but shall not Occupy any Unit. ¹ The federal Housing for Older Persons Act of 1995. See 24 C.F.R. Part 100.

To navigate these rules, the Association distinguishes between two categories of presence for those under 19:

• Staying Overnight: Explicitly permitted for a maximum of 90 days per calendar year.
• Occupying: Strictly prohibited for individuals under the age of 19.

3. The Definition of "Occupancy" vs. "Visiting"

The pivotal issue before ALJ Mihalsky was the interpretation of "Occupy." A July 28, 2010, amendment to Section 2.48 of the CC&Rs clarified "Occupy" as "actually residing in the Unit for at least 90 days in the applicable calendar year."

The Respondent, Ms. Gaines, maintained that "residing" required sleeping at the property. However, testimony from the homeowner’s daughter and granddaughter revealed a staggering volume of presence: the children were at the home for 60 to 65 hours during the work week and another 14 to 15 hours on weekends.

ALJ Mihalsky determined that the children were present for a total of 80 to 85 hours per week. In her decision, the ALJ defined "reside" as "to dwell permanently or for a considerable time" or having a "bodily presence as an inhabitant."

Crucially, the ALJ applied the "exception swallowing the rule" logic: if overnight stays were the only metric for occupancy, every homeowner in Province could provide full-time childcare services for minors seven days a week, from sunrise to well after sunset. Under such a narrow interpretation, Province would effectively cease to be an age-restricted community, as the intent of the CC&Rs would be nullified by daytime inhabitants.

4. The Role of Reasonable Accommodation

The case was complicated by a request for "Reasonable Accommodation." Ms. Gaines, who is wheelchair-bound and requires 24-hour care, requested in August 2015 that her granddaughter, Alisha Jennings, and the great-grandchildren be allowed to move in so Ms. Jennings could act as a caregiver. The Association initially granted this request.

However, the Association revoked the accommodation on October 1, 2015, following an investigation sparked by a post on NextDoor.com. The post revealed that Ms. Jennings was actually working and attending school outside the home during the day, meaning she was not providing the 24-hour care that formed the basis of the request.

ALJ Mihalsky upheld the revocation, noting that the arrangement was one of "convenience" rather than "necessity." The ruling emphasized that there was no evidence suggesting that other care arrangements—ones that would not require the children to reside in the home—could not have been made to meet Ms. Gaines’ medical needs.

5. Neighbor Testimony and Community Impact

Testimony from neighbors provided a window into the stakes for the broader community. Becky Clark, a resident living cater-cornered to Ms. Gaines, provided compelling testimony regarding the daily presence of the children.

Notably, Ms. Clark herself has six children and 15 grandchildren, yet she testified that she chose to move to Province specifically for its age-restricted status. She argued that she would not have purchased her home had she known children would be residing across the street. This detail underscored the Association’s position: the enforcement of age restrictions is not a matter of personal animosity toward children, but a matter of protecting the specific contractual lifestyle and investment the residents purchased.

Advisory Committee member Rosie Kuzmic echoed these concerns, stating that failure to enforce the CC&Rs would jeopardize Province’s legal status under HOPA and negatively impact homeowner investments.

6. Final Decision and Takeaways

On June 6, 2016, ALJ Mihalsky issued an order requiring the Respondent to comply with Article 3, Section 3.1(b) of the CC&Rs. Furthermore, Ms. Gaines was ordered to pay the Association’s filing fees. The decision was certified as a final agency action on July 14, 2016.

Key Takeaways for Homeowners:

• Overnight stays are not the only metric for occupancy. Legal residency can be established by a "bodily presence" over a "considerable time," regardless of where a person sleeps.
• "Residing" is defined by the total volume of hours. The court found that 80–85 hours per week constitutes occupancy.
• HOAs must strictly enforce age restrictions to protect HOPA status. Inconsistent enforcement creates "exceptions that swallow the rule," threatening the community’s legal standing as a senior-only development.
• Reasonable accommodations are subject to ongoing verification. If the underlying facts of an accommodation change—such as a caregiver working outside the home—the HOA has the authority to revoke the status if the arrangement is deemed a convenience rather than a medical necessity.

7. Compelling Conclusion

The Province vs. Gaines case serves as a definitive reminder that "retiring like you mean it" requires a strict adherence to the governing documents. While family and caregiving are vital aspects of life, they must be balanced against the contractual obligations of an age-restricted community. As this ruling demonstrates, the definition of "occupancy" is not confined to a pillow and a bed; it is measured by the footprint of one's daily life within the community. For homeowners, understanding the fine print regarding childcare and long-term visits is essential to protecting both their lifestyle and their legal standing.