Fair Housing Act
Enacted in 1968 to eradicate racial barriers in the housing market, the Fair Housing Act (FHA), 42 U.S.C. §3601, et. seq., forbids housing discrimination on the basis of race, color, religion, sex, familial status, and national origin. A later amendment included disability in the list of \"protected classes\" outlined in the FHA (42 U.S.C. §3604).
According to this legislation, a homeowners association cannot execute any action that negatively affects a person's ability to purchase, rent, or use real estate based on their membership in a protected class. While it's clear that exclusionary covenants barring sales or leases to members of a protected class infringe the FHA, the law also prohibits certain less overtly discriminatory activities.
Recently, HOAs have faced issues with the FHA's protection of \"familial status\" (42 U.S.C. §3604(b)). Courts have ruled that almost any discrimination related to age, including against children or families with children, breaches the FHA. See Iniestra v. Cliff Warren Investments, Inc., 886 F. Supp. 2d 1161, 1164 (C.D. Cal. 2012). This means that rules limiting children's use of communal facilities or rules barring members from leasing to families with children potentially infringe the FHA.
To evade liability, associations should craft regulations unrelated to age. For instance, while restricting pool access by residents under age 12 may violate the FHA, a restriction based on height is more likely to comply.
If a plaintiff proves that an association treats people differently based on familial status, the association can only escape liability by showing that their rules constitute a compelling business necessity and that they have used the least restrictive means to achieve that goal. See Fair Housing Council v. Ayres, 855 F. Supp. 315, 318–19 (C.D. Cal. 1994).
An association requiring board approval for potential tenants should proceed carefully, ensuring that the screening criteria is objective, documentable, and inherently neutral concerning protected classes. Even if a screening policy isn't designed to discriminate based on any prohibited factor, if the policy results in a \"disparate impact\" on a protected class, it may infringe the FHA. See Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507 (2015); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
Hence, associations with screening policies might prefer to conduct screenings without in-person interviews and limit their review to documents that do not disclose a potential tenant's status in any protected class.
Disability discrimination likely instigates more FHA actions against associations than any other protected class. It doesn't only involve policies that overtly discriminate against disabled individuals or result in an adverse impact on them. It can also encompass an association's failure to make \"reasonable accommodations\" and \"reasonable modifications\" to facilitate the use of common elements by disabled individuals.
A reasonable accommodation is 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.\" See Joint Statement of HUD and Dept. of Justice Reasonable Accommodations under the Fair Housing Act (2004). Modifications to parking rules to facilitate access for disabled persons or allowing an exception to a \"no pets\" policy for a blind resident’s service dog could be considered reasonable accommodations.
A reasonable modification is a \"structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises.\" See Joint Statement of HUD and Dept. of Justice Reasonable Modifications under the Fair Housing Act (2008). Reasonable modifications may be necessary for building interiors, exteriors, or to common elements. Widening halls or doorways for a resident who uses a wheelchair could be a reasonable modification.
Whether a requested modification or accommodation is \"reasonable\" in a specific case is \"highly fact-specific, requiring case-by-case determination.\" See Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d 1133, 1136 (N.D. Cal. 2000). If a requested modification or accommodation is directly related to a resident's disability, an association can only decline the request if it would \"impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider's operations.\" See Warren v. Delvista Towers Condo. Assoc., 49 F.Supp. 3d 1082 (2014).
In recent years, requests for accommodation related to assistance animals have been a heated topic in FHA litigation. An assistance animal is defined as \"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.\" See HUD FEO 2013-01, and Fla. Stat. § 413.08(1)(d).
Assistance animals include emotional support animals, so a condo association’s refusal to allow a PTSD suffering resident to keep his dog due to a restriction on pet size resulted in a significant award against the association. See Bhogaita v. Altamonte Heights Condominium Assn., 765 F.3d 1277 (11th Cir., 2014).
With civil penalties potentially as high as $50,000 and violations not always immediately obvious, the FHA may be the most risky federal statute for HOAs. See 42 U.S.C. §3612(g)(3). Boards should exercise caution and consult with counsel whenever there is any doubt as to whether a rule is discriminatory or an accommodation is necessary.