Understanding How the Fair Housing Act (FHA) Regulates Homeowners Associations

Associations frequently run into trouble with the FHA’s protection of “familial status” — households that include one or more children under 18. 42 U.S.C. § 3604(b). Courts read that protection broadly: rules that single out or disadvantage children, or families with children, can violate the FHA even when they never mention families directly. See Iniestra v. Cliff Warren Investments, Inc., 886 F. Supp. 2d 1161, 1164 (C.D. Cal. 2012). So a rule restricting children’s use of common facilities — or one preventing owners from renting to families with children — can run afoul of the Act.

To reduce that risk, associations should tie their rules to conduct or safety rather than to age. A blanket ban on pool use by residents under 12 is vulnerable; a rule grounded in a genuine safety rationale — for example, requiring that anyone who cannot swim be accompanied — is far easier to defend.

If a resident shows that an association is treating families differently because of familial status, the association can defend the rule only by showing it serves a “compelling business necessity” pursued through “the least restrictive means to achieve that end.” Fair Housing Council v. Ayres, 855 F. Supp. 315, 318–19 (C.D. Cal. 1994).

Disability generates more FHA claims against associations than any other protected class — and it reaches well beyond rules that openly target disabled residents. Critically, it also covers an association’s failure to act: its refusal to make “reasonable accommodations” and “reasonable modifications” that let disabled residents use their homes and the community’s common elements.

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).

Because FHA violations aren’t always obvious and civil penalties can climb past $100,000 for repeat offenders, it may be the most dangerous federal statute an HOA faces. 42 U.S.C. § 3612(g)(3). Boards should tread carefully and consult counsel whenever there is real doubt about whether a rule discriminates or an accommodation is required.