How the Fair Housing Act Protects Homeowners from Discrimination

What does the FHA require of HOAs?

If you own a home and are subject to the authority of an HOA, you might feel as if these community organizations have unlimited power to regulate communities. This is not entirely accurate, though it is conceded that they retain a lot of unchecked authority. Yet, there are certain actions taken by an HOA that will be considered discrimination under federal law and are prohibited. These instances are very fact specific, as will be explained in this article.

 What is the Fair Housing Act?

Congress initially effectuated the Fair Housing Act (FHA)—codified at 42 U.S.C. §§ 3601-3619—in 1968 to prevent discrimination in housing based on race, color, religion or national origin. By 1988, the FHA had been expanded to protect classes to include sex, disability, and familial status. The Department of Housing and Urban Development (HUD), in concert with the U.S. Department of Justice (DOJ), brings actions against housing providers that violate the statute. Specifically, be aware of Section 804 of the FHA that prohibits an HOA from “discriminat[ing] 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 with such dwelling, because of a handicap.” And yes, discriminate is a loaded term that has different meanings depending upon who suffered the discrimination; we will unpack it all here in a moment.

To Whom Does the FHA Apply?

According to the Justice Department, the duties assigned by the FHA apply 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.” There are even cases where Courts have applied the law to municipalities over zoning questions. It is a resolved legal issue that an HOA is under the purview of this federal regulation, and it will need to act accordingly.

An important distinction: the law requires specialized protections for people with disabilities. We will next discuss the requirements of reasonable accommodation and reasonable modification for people with disabilities. These concepts do not apply to the other protected classes (like religion and familial status) listed in the law.

What Constitutes Discrimination Against People with Disabilities Under the FHA?

Section 804 of the FHA, (in concert with the Americans with Disabilities Act), requires an HOA to permit a reasonable accommodation or a reasonable modification. Each will be addressed in turn.

According to the DOJ, 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.” The DOJ includes a non-exclusive list of examples: adjusting a requirement that the rent be paid in-person, parking spots being assigned on a first-come, first-served basis (as in an exception to this rule should be made for certain folks), and revising a no-pet policy for disabled tenant needing a service dog. The housing provider is required to pay any reasonable cost for a valid reasonable accommodation.

An HOA may only deny a reasonable accommodation 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.” This question of undue burden is fact-specific and determined on a case-by-case basis. Even if a requested accommodation is undue, it is in the HOA’s interest to work with the tenant to come up with a suitable solution that each side finds reasonable as litigation is usually the more expensive route.

Contrast that with the reasonable modification requirements. According to the DOJ, “reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas.” See the difference? An accommodation is a change in rules/procedures; a modification is a physical change to the living space.

The resident must show that the modification is reasonable and necessary by demonstrating “an identifiable relationship, or nexus, between the requested modification and the individual’s disability.” The DOJ includes these specific examples of valid, reasonable modification requests:

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

An important caveat for reasonable modifications: the tenant is required to pay for the modification, not the housing provider like with accommodations.

What Exceptions are There in the Discrimination Against People with Disabilities Under the FHA?

There are two big exceptions to the FHA disability requirements to be aware. First, although the FHA protects people that are recovered from substance addiction as a person with a disability, that protection does not extend to a person that is currently using illicit substances. HOAs and other housing providers are permitted to discriminate against the current illicit substance addicts in the name of the safety of their current residents. Additionally, because the FHA does not protect potential tenants that pose a “direct threat” to other residents, juvenile and sex offenders are exceptions to the prohibition.

What Constitutes Discrimination Against the Other Protected Classes Under the FHA?

 Now that we have a firm understanding of the protections afforded to people with disabilities under the FHA, what about the other types of discrimination prohibited by the law?

If you read the FHA carefully, you will see (and this has been affirmed by the Courts), that the accommodation/modification requirements apply only to residents with disabilities. For issues addressing (for example) race, religion, or familial status, HOAs have more leeway to regulate so long as the prohibitions are content neutral.

Specific prohibitions against prayer rugs, crucifixes, or menorahs (as just three examples) in the public living space of an apartment building would be obviously prohibited as religious discrimination under the FHA. Yet, if a prohibition is what they fancy legal types call content neutral, then the regulation will likely be upheld. For example, an Orthodox Jewish man in Chicago sued his condominium association because the association enforced a rule that prohibited “any objects” to be left in the hall, including his mezuzah. The Seventh Circuit held the condo association did not violate the law because it was “content neutral,” meaning it applied equally to religious people of all types that leave items outside of their doors. Judge Easterbrook writes that the discrimination would have to reach the level of “constructive eviction” before Section 804(b), see above, of the FHA would be violated.

Important note: Just because an action is not prohibited by federal law, it does not mean your state or local municipality will not provide protections. Judge Easterbrook states that such a law exists in Chicago, for example. Virginia, Florida, and California are three states that have such laws.

Content Neutral Prohibitions and Familial Status

One of the least intuitive, but most common claims made under the FHA is against HOAs for discriminating against resident’s familial status. Familial status is an important, pregnant legal term. Courts understand this term to mean that association rules may not discriminate against a resident based on her age, often cases against persons under 18 years old.

For example, rules like “adult only swimming hours” or a specified time of day where only adults may use a common area for “quiet time” are two HOA prohibitions likely illegal under the FHA. Any rule that prevents the same use and enjoyment of a common area for a child that does not apply to every resident is likely prohibited.

Smart HOAs will use neutral language for policies directed toward children. They may not say “Teenagers may not loiter in the street” as that would discriminate against young people, but they could preclude loitering generally. Another example would be that instead of an age requirement at a community pool, an HOA would apply a height requirement. There is an exception to this rule for senior living communities as they are permitted to have an age minimum requirement.

Now you have a clear understanding of how HUD and the DOJ enforce disability discrimination requirements through reasonable accommodations/modifications, and how content-neutral rules are permitted against the other protected classes of the FHA.

What is the Penalty for an FHA Violation?

The civil penalty starts at $19,787 for a single violation of the FHA and up to $98,935 for multiple violations. In addition, the violator will likely have to pay the attorney’s fees of the victorious party. And yes, each member of an HOA board could be held individually liable for the harm.

How to File a Complaint for an FHA Violation

If you are the victim of prohibited discrimination, you may file a complaint with HUD three different ways.

  1. Call the HUD case managers toll-free (800) 669-9777 or TTY (800) 927-9275.
  2. You may file a complaint online.
  3. You may mail a complaint/letter to:

Office of Fair Housing and Equal Opportunity

Department of Housing & Urban Development

451 Seventh Street, S.W., Room 5204

 Washington, DC 20410-2000

If you believe a single violation exists, talk to an experienced community association attorney. This is a complicated subject and should be handled by an experienced professional who understands the law.  Our goal is to provide owners with general guidance and knowledge of their rights and obligations as HOA members. This article is provided for informational purposes only and is not a substitute for legal research and advice.