Fair Housing Act  

The Fair Housing Act, 42 U.S.C. 3601 et seq., prohibits discrimination by landlords and HOAs, as well as others associated with providing housing whose discriminatory practices make housing unavailable (or restrict the use of housing) to persons because of:

•    race or color
•    religion
•    sex
•    national origin
•    familial status, or
•    disability.

Discrimination Based on Familial Status

The Fair Housing Act prohibits discrimination in housing against families with children under 18. The Act prevents housing providers (including HOAs) from imposing any special requirements or conditions on families with children. For example, an HOA may not place an unreasonable restriction on the total number of persons who may reside in a dwelling, or restrict children from access to recreational services or amenities provided to other residents, such as the pool or exercise equipment.  Setting an “adults only” time for use of the pool is an example of a prohibited rule that would violate the Act. Other examples include prohibiting “children from loitering and playing in hallways," and prohibiting “children under 17 in the pool without supervision.”

In most instances, the Fair Housing Act prohibits an HOA or a housing provider from prohibiting or refusing rental or sale to families with children. However, some facilities may be designated as Housing for Older Persons (55 years of age). This type of housing, which meets the standards set forth in the Housing for Older Persons Act of 1995, is exempt from the prohibition of discrimination against families.  In other words, properly established “55 & Older” communities can discriminate against families and children by regulating or restricting children and prohibiting sale or rental to families with children.

If you are in an age restricted community (e.g., a 55 & older community), there are specific requirements that must be followed on an ongoing basis by the association, including establishing procedures and performing periodic surveys (see HOPA Summary)  In order to avoid jeopardizing the association’s status as an age restricted community, it is important to work with an attorney experienced in these issues to adopt procedures and carry them out in compliance with the law.

Discrimination Based on Disability

The Fair Housing Act prohibits discrimination on the basis of disability in all types of housing transactions.  It’s important to realize that discrimination against disabled persons is unlike any other type of discrimination.  At the core of the policy against discrimination is the concept that everyone should be treated equally.  The Act, however, requires that housing providers give special treatment to the disabled when it is necessary to allow them to have an equal opportunity to enjoy their dwellings.  Specifically, a disabled person is entitled to “reasonable accommodations” (exceptions) in the rules, practices, or services of a housing provider (including an HOA) that are necessary for a disabled individual to use or enjoy a dwelling.  So, while uniform enforcement of the governing documents and rules is crucial as a general principle in an HOA, such uniform enforcement is actually against the law when a rule interferes with a disabled person’s use and enjoyment of their dwelling.  

Requests for Reasonable Accommodation.
When considering a request for a “reasonable accommodation,” an HOA must normally evaluate whether: (1) the individual is disabled, (2) the requested accommodation is reasonable, and (3) the requested accommodation is necessary for the individual to use or enjoy a dwelling.

            1.  Disabled.  An individual can be disabled in one of three ways. A disability is: (a) a mental or physical impairment which substantially limits one or more major life activities, (b) a record of having such an impairment, or (c) being regarded as having such an impairment.

The term mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, mental retardation, alcoholism, drug addiction (but current drug users are not considered disabled), chronic fatigue, learning disability, head injury, and mental illness.  The term major life activity may include seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, speaking, or working.

            2.  Reasonable.  To be reasonable, an accommodation cannot impose an undue financial or administrative burden on the HOA and the benefit of the accommodation to the disabled person is weighed against the burden on the housing provider.  Those things are determined on a case-by-case basis taking various factors into account, such as the cost, the resources of the provider, the benefit of the accommodation, and whether alternatives would meet the disability-related needs.

            3.  Necessary.  For a requested accommodation to be necessary for the individual to use or enjoy a dwelling, the requested accommodation must affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability.  In other words, there must be a nexus between the disability and the requested accommodation.

Modifications.  
The Act also requires an HOA or housing provider to permit a disabled person to make reasonable modifications to the common area or to a unit.  The modification is made at the disabled person's expense (unless it is to be used by anyone other than that person, or, if the HOA requires more expensive materials or options than those proposed by the owner, then the HOA pays the difference).  This is in contrast to an accommodation. Accommodations are made by the housing provider (HOA) and can result in an expense to the HOA (unless it creates a financial burden on the HOA). 

Some of the examples HUD has given of modifications that are typically considered reasonable include:

1. widening doorways to make rooms more accessible for persons in wheelchairs;
2. installing grab bars in bathrooms;
3. adding a ramp to make a primary entrance accessible for persons in wheelchairs; or
4. altering a walkway to provide access to a public or common use area.

Pet Restrictions and Assistance Animals.
A request for an exception to an HOA’s pet restriction for a service or assistance animal is considered a request for a reasonable accommodation (see above for evaluating requests for reasonable accommodation). 

An association is entitled to information that allows it to make a meaningful review and an informed decision on the request for reasonable accommodation.  For example, an association could request a copy of a note from a health care provider verifying that the owner is disabled, recommending the use of an assistance animal to treat the owner’s disability, and verifying that the animal is necessary for the disabled person to use and enjoy his or her residence.  Such information must be kept confidential and may not be shared with other persons unless they need it in relation to the reasonable accommodation request.  An association cannot request copies of the disabled owner’s medical records or more detailed information about the nature of the disability.