Many condominiums and housing developments have homeowners’ associations (HOAs) that set rules and regulations for all community residents to abide by. But the HOAs can't just write up any rules they like, for example to exclude or punish a neighbor they're not fond of. The rules and regulations must be drafted, implemented, and enforced in a consistent, nondiscriminatory manner so as to avoid violating the federal Fair Housing Act (FHA), enforced by HUD. A violation of the FHA can lead to an expensive lawsuit against an HOA.
Here, we'll look closer at who is legally protected from discrimination and how that protection should be maintained.
Who Is Protected From Housing Discrimination in HOAs Under Federal Law
The FHA, which applies to people and entities that are involved in the provision of housing (HOAs included), prohibits discriminating against anyone in housing because of that person's race, color, national origin, religion, gender, familial status, or disability.
Some instances of housing discrimination can be obvious. It’s plainly illegal to not sell a house to a person because of that person’s race, for example.
Discrimination in housing matters, though, often occurs more subtly. For example, an HOA rule that forbids homeowners from altering a home design that includes a front porch and steps to access the place might inadvertently prohibit construction of a wheelchair ramp, resulting in a violation of the disability protections in the FHA.
HOAs Board Members Must Avoid Making Discriminatory Decisions
If an HOA's governing documents give its board of directors the right to make housing decisions, such as whether to rent or sell a house, it must be careful not to make such decisions based on a person’s race, color, religion, sex, national origin, familial status, or disability. This, too, can occur in subtle ways, for example if the board decides that someone "just doesn't fit in."
HOAs Must Ensure That Community Rules Do Not Contain Discriminatory Terms
When an HOA’s governing documents control such things as who can use a community pool, where or whether members can place religious symbols on their property, or whether ramps can be used in lieu of porch steps, the HOA risks violating the FHA. An HOA should review its governing documents to make sure there is no discriminatory language included.
Additionally, the HOA must be sure to apply its rules and regulations consistently so that it doesn’t inadvertently apply the governing documents in a discriminatory manner.
HOAs Cannot Discriminate Based on Familial Status
An HOA can’t discriminate against community members or prospective community members because of family status. This includes families with children under the age of 18 and pregnant women.
A rule in the HOA’s CCRs that prohibits renting or selling a home to a family with children would violate this protection. Familial status issues also come up in the context of age restrictions for use of community facilities, like pools and exercise rooms. For example, an “Adult-Use Only” pool could violate the familial status protections in the FHA.
Some exceptions apply, though. First, an HOA can adopt a rule that is rooted in business necessity and is the least restrictive means by which to achieve what the rule is intended to address. Adopting a rule that prohibits minors from using a pool might be necessitated by the cost of insurance premiums, for example. However, a blanket prohibition might not be the least restrictive means of achieving lower premiums if the insurance company simply wants the HOA to require adult supervision for minors using the pool.
The FHA also provides an exception to its familial status protections if the development's intent is to provide housing for older people. To qualify for this exception, the development must meet certain conditions. All current residents, for example, must be age 62 or older.
HOAs Cannot Discriminate Against Disabled People
Discrimination against disabled people commonly occurs when an HOA refuses to make a “reasonable accommodation” or to allow a “reasonable modification” for the disabled person's needs.
A reasonable accommodation is a change in rules, policies, practices, or services, that allows a disabled person an equal opportunity to use and enjoy a house or common area. If an HOA’s CC&Rs restrict pet ownership, for instance, the HOA could be required to make a reasonable accommodation by allowing a disabled person to have a support animal.
A reasonable modification is a structural change made to allow a disabled person the full enjoyment of a house or common facility. To avoid violating the FHA, an HOA might need to allow a disabled person to construct a wheelchair ramp to access a house, even if the ramp violates the CC&R rules for home construction or improvements. Reasonable modifications are typically made at the owner’s expense, not the HOA’s.
Exceptions apply to the reasonable accommodation/modification requirements in the FHA. For example, a request for reasonable accommodation that imposes an undue financial or administrative burden on the HOA might not be within the homeowner’s rights under the FHA.
To avoid disability claims, an HOA should adopt a reasonable accommodation/modification policy, and then apply it consistently to all owners. An attorney can help draft this policy.
How a Lawyer Can Help With FHA Discrimination Matters
In addition to (perhaps inadvertently) discriminating based on disability or familial status, an HOA might discriminate based on race, national origin, gender, and religion. The law related to housing discrimination is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction. For more detailed, specific information, contact a real estate or civil rights lawyer.
Questions for Your Lawyer
- My HOA won’t let my 17-year old (or anyone under the age of 18) use the community exercise room. Is this legal?
- Is it okay for my HOA to allow Christmas lights on the exterior of houses, but prohibit other religious displays?
- I’m concerned the board of my HOA is making decisions that violate the FHA. As an assessment-paying member, I don’t want to have fund the legal defense when the HOA gets sued. What should I do?
- I’m on my HOA board. Our insurance provider is requiring that we adopt a rule restricting pool access to people over the age of 18 unless they are accompanied by a parent. To avoid violating the familial status protections in the FHA, what should we do?