FEDERAL FAIR HOUSING ACT

The Fair Housing Act (FHA), 42 U.S.C. §§ 3601-3619 is a federal law that prevents housing discrimination against any person because of:

  • Race

  • Color

  • National Origin

  • Religion

  • Sex

  • Familial status (including children under the age of 18 living with parents or legal custodians; pregnant women and people securing custody of children under 18),

  • Handicap

Are HOAs subject to the FHA?

Yes. The FHA applies to all 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.  

What is considered discrimination?

It is against the law to discriminate against a person based on race, color, religion, sex, disability, familial status, or national origin in the sale or rental of housing. In particular, under 42 U.S. Code § 3604, the following actions are prohibited:

  • To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

  • To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.

  • To make, print, or publish, or cause to be made, printed or published any notice, statement, or advertisement, concerning the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

  • To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is so available.

  • For-profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin. 

  • To deny any person access to or membership or participation in any multiple-listing service, real estate brokers' organization or other services, organization, or facility relating to the business of selling or renting dwellings, or to discriminate against him in the terms or conditions of such access, membership, or participation, on account of race, color, religion, sex, handicap, familial status, or national origin. Section 3606

 

Reasonable accommodations and modifications for people with disabilities

Under Section 804 of the FHA and the Americans with Disabilities Act, community associations are required to allow reasonable accommodations or modifications for a person with a disability to have an equal opportunity to use and enjoy a dwelling. See DOJ's non-exclusive list of examples.

The Department of Justice provides the following definitions:

  1. Reasonable accommodation - A change, exception, or adjustment to a rule, policy, practice, or service.

  2. Reasonable modification - Structural changes to interiors and exteriors of dwellings and common and public use areas.

What is considered a disability?

Federal laws define a person with a disability as a person who has:

  • A physical or mental impairment that substantially limits one or more of the major life activities of such individual;

  • A record of such an impairment; or

  • Being regarded as having such an impairment.

The law does not protect a person who is a direct threat to the health or safety of others or who currently uses illicit substances or illegal drugs. Additionally, because the FHA does not protect people that pose a “direct threat” to other residents, juvenile and sex offenders are exceptions to the prohibition.

How long do you have to file a housing discrimination complaint?

Under 42 U.S.C. § 3610(a), an "aggrieved person may, not later than one year after an alleged discriminatory housing practice has occurred or terminated, file a complaint with the Secretary alleging such discriminatory housing practice."

 

How to file a discrimination complaint

If you are the victim of prohibited discrimination, you may file a complaint with your state’s fair housing agency, local Fair Housing and Equal Opportunity (FHEO), or HUD three different ways:

  1. Call the HUD case managers toll-free (800) 669-9777 or TTY (800) 927-9275. You can also follow this link for a HUD directory.

  2. You can mail your complaint/letter to:

U.S. Department of Housing and Urban Development
Office of Fair Housing and Equal Opportunity
451 7th Street, S.W., Room 5204
Washington, DC 20410-2000
Telephone 1-800-669-9777
Fax (202) 708-1425 * TTY 1-800-927-9275
www.hud.gov/fairhousing

    3. You may file a complaint online by following the link here.

Filing a private civil lawsuit

A person has the right to file a separate private civil lawsuit against a homeowners association in the Federal District Court. The lawsuit must be filed within two (2) years of the most recent date of the alleged discriminatory action at the aggrieved person's expense. However, if the aggrieved person cannot afford an attorney, the Court may appoint one.

This lawsuit can be filed, in addition to the HUD complaint, unless:

  1. A HUD Conciliation Agreement is signed to resolve the HUD complaint; or

  2. A HUD Administrative Law Judge has commenced an Administrative Hearing for the complaint.

Additional information

The information provided on this page is designed to give community members basic information about the Fair Housing Act. We encourage members to visit www.hud.gov to obtain detailed information about this subject.

 
 

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Religious Freedom in Homeowners Associations

Up until the 1968 passage of the Fair Housing Act (“FHA”), homeowners associations had a lot of leeway to interfere with religious practices or promote particular denominations.  But now that the FHA is firmly entrenched in the national lexicon, there are significant limitations on the power an HOA has to restrict religion.  The Fair Housing Act, 42 U.S.C. §3604(b), makes it unlawful for “housing providers” (including community associations) “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.”

What About the Children? HOA Age Restrictions and FHA Proscriptions

Restrictive covenants in homeowners’ associations are not unusual—nearly every community has them.  For homeowners, the restrictions are something of a trade-off.  You accept a limitation on how you can use your property because, if everyone else in the community does, too, the neighborhood as a whole will be better off.  ‘If we all agree to keep our yards well-maintained and our houses painted nice-looking colors, we all benefit from a more attractive neighborhood with higher property values.’ Courts view HOA restrictions along the same lines as any contract and presume the restrictions are enforceable unless there’s a specific reason why the restriction should not be enforced.

Freedom in Associations: Exercising Free-Speech Rights in an HOA

Freedom of speech is perhaps the most cherished and most important protection provided by the United States Constitution.  The delegates to the Constitutional Convention viewed citizens’ right to speak their minds without fear of government retribution as so important that “freedom of speech” is enshrined in the very First Amendment of the Constitution.  Indeed, many Convention delegates refused to ratify the Constitution absent an unqualified guaranty that the new government would be forbidden from “abridging the freedom of speech.”

HOAs and Group Homes: The Challenge of Developing a Fair and Compliant Policy

Zoning ordinances and HOA covenants often disallow commercial uses of properties in residential areas.  A group home that accepts payments for services provided at the home is almost certainly engaging in commercial activity.  But, although the plain language of an ordinance or covenant might appear to prohibit such a group home, federal law forbids state and local governments or HOAs from impeding certain protected uses (more on that later). Importantly, there are different categories of group homes, and the laws protecting each home depend in large part on what kind of home is involved.

The Do's and Don'ts of HOA Rental Restrictions

Rental restrictions undeniably limit the free-use of property.  Nonetheless, courts throughout the country have consistently upheld such restrictions when rationally calculated to promote the development’s greater good.  Even blanket rental prohibitions have been reluctantly upheld in some states, as long as the association has a legitimate purpose for the restriction. “Legitimate purposes” justifying rental restrictions typically involve maintenance of property values and promotion of community standards. Along with serving a legitimate purpose, to be enforceable a rental restriction must be a “reasonable” means of accomplishing the stated goal. Rental restrictions come in several forms, two of the most popular of which are caps and lease restrictions. 

Enforcing Pet Restrictions: What's Allowed And What's Not?

Pets can be a welcome addition to your family.  A loyal dog, a comforting cat, or even a calming fish tank can vivify a household and provide a soothing distraction from the daily grind.  But, unfortunately, pets can also occasionally become an annoyance to neighbors.  Overly abundant cats or noisy dogs negatively affect a development’s quality of life and aesthetic appeal.  Aiming to curtail potential nuisances, many homeowners’ associations have adopted pet restrictions within their declarations, establishing rules regulating members’ pet choices and practices. Learn what homeowners' association can (and cannot) do under the law when it comes to enforcing pet restrictions.