By: Christopher R. Moore, Esq.

Enacted in 1968 to remove racial restrictions in the housing market, the Fair Housing Act, 42 U.S.C. §3601, et. seq., prohibits discrimination in housing based upon race, color, religion, sex, familial status, and national origin. A subsequent amendment added disability to the “protected classes” enumerated in the FHA 42 U.S.C. §3604.

Under the law, a homeowners association 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. Obviously, exclusionary covenants preventing sales or leases to anyone within a protected class would violate the FHA, but the law also prohibits certain activities which might not seem so obvious on the surface.

HOA’s have run into recent trouble with the FHA’s protection of “familial status.” 42 U.S.C. §3604(b). Courts interpreting the statute have held that nearly any discrimination relating to age, including discrimination against children or families with children, violates the FHA. See Iniestra v. Cliff Warren Investments, Inc., 886 F. Supp. 2d 1161, 1164 (C.D. Cal. 2012). This means that rules restricting children’s use of common facilities – or rules preventing members from renting to families with children – potentially violate the FHA.

To avoid liability, associations should draft regulations in a manner not directly related to age. Where a restriction on pool access by residents under age 12 might violate the FHA, a restriction based upon height is more likely to be compliant.

If a plaintiff demonstrates that an association is treating people differently based upon familial status, the association can only avoid liability if it can “establish that their rules constitute a compelling business necessity and that they have used the least restrictive means to achieve that end.” Fair Housing Council v. Ayres, 855 F. Supp. 315, 318–19 (C.D. Cal. 1994).

An association that requires board approval of prospective tenants should proceed with caution and ensure that the screening criteria is objective, documentable, and facially neutral as it relates to protected classes. Even if a screening policy is not intended to discriminate based upon any prohibited factor, if the policy results in a “disparate impact” on a protected class, it may violate the FHA. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507 (2015); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).

For this reason, associations with screening policies may wish to conduct screenings without face-to-face interviews and limit their review to materials which do not reveal a prospective tenant’s status in any protected class.

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.

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). 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 be 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 needed for building interiors and exteriors or to common elements. Widening halls or doorways to allow access by a resident who uses a wheelchair could be a reasonable modification.

Whether a requested modification or accommodation is “reasonable” in a given scenario is “highly fact-specific, requiring case-by-case determination.” Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d 1133, 1136 (N.D. Cal. 2000). If a requested modification or accommodation has a direct connection 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.” Warren v. Delvista Towers Condo. Assoc., 49 F.Supp. 3d 1082 (2014).

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.” HUD FEO 2013-01, see also Fla. Stat. § 413.08(1)(d).

Assistance animals include emotional support animals, so, for instance, 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. Bhogaita v. Altamonte Heights Condominium Assn., 765 F.3d 1277 (11th Cir., 2014).

With civil penalties ranging as high as $50,000, and violations not always immediately obvious, the FHA may be the most dangerous federal statute for HOA’s. 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.