The Fair Housing Act (FHA) was first enacted in 1968 to remove racial restrictions in the housing market, the FHA prohibits discrimination in housing based upon race, color, religion, sex, familial status, and national origin. A subsequent amendment added disability to the “protected classes.”
The Fair Housing Act applies to "individuals, corporations, associations, and others involved in the provision of housing and residential lending, including property owners, housing managers, homeowners, and condominium associations, lenders, real estate agents, and brokerage services." Homeowners Associations fall under the umbrella of the FHA and should take care to comply with its obligations.
Under the law, a homeowners association (HOA) cannot take any adverse action affecting a person's right to buy, rent, or enjoy the use of real estate based upon that individual's membership in a protected class. Exclusionary clauses preventing sales or leases to anyone within a protected class would violate the FHA. Still, the law also prohibits certain activities that might not seem so apparent on the surface. Here's a basic overview of how it affects your HOA.
- It prohibits discrimination against families with children under 18.
- It requires that they make reasonable accommodations for people with disabilities.
- It prohibits all forms of discrimination based on protected classes.
HOA’s have run into recent trouble with the FHA’s protection. An association that requires board approval of prospective tenants should proceed with caution and ensure that the screening criteria are objective, documentable, and facially neutral related to protected classes. Even if a screening policy does not intend to discriminate based upon any prohibited factor, if the policy results in a "disparate impact" on a protected class, it may violate the FHA.
Disability discrimination probably leads to more FHA actions against associations than any other protected class. And it doesn’t just consist of policies that facially discriminate against disabled persons or result in an adverse impact on them.
Disability discrimination can also include an association's failure to make "reasonable accommodations" and "reasonable modifications" to facilitate the use of common elements by disabled persons. The FHA defines reasonable accommodation as: "a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces." Modifying parking rules to allow disabled persons easier access or allowing an exception to a "no pets" policy for a blind resident's service dog could fall under the definition of "reasonable accommodations."
A reasonable modification is a "structural change made to existing premises, occupied or to be occupied by a person with a disability, to afford such person full enjoyment of the premises." The HOA may need to consider reasonable modifications for building interiors and exteriors or to common-area elements. Widening halls or doorways to allow access by a resident who uses a wheelchair could be a reasonable modification.
Requests for accommodation related to assistance animals have been a hot topic in FHA litigation in recent years. An assistance animal is “an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.”
With civil penalties ranging as high as $50,000, and violations not always immediately apparent, the FHA may be the most dangerous federal statute for HOA's. Boards should exercise caution if its in doubt about whether a rule is discriminatory or an accommodation is necessary.
Lastly, zoning ordinances and HOA clauses often disallow commercial uses of properties in residential areas. A group home that accepts payments for services provided at the home is often inaccurately considered commercial. Although the plain language of an ordinance or clause might appear to prohibit such a group home, federal law forbids state and local governments or HOAs from impeding certain protected uses. Notably, there are different categories of group homes, and the laws protecting each home depend in large part on what kind of home is involved.