FEDERAL LAWS TO KNOW FOR HOAs
Homeowners associations are generally creatures of state law. State legislatures enact statutes authorizing HOA’s within a state, and, for the most part, state laws and regulations govern how they operate. But that doesn’t mean federal statutes don’t have an impact. In fact, quite a few federal laws directly affect HOA functions – regulating what an association can and cannot do and providing protections to both homeowners and the general public. Violations of federal law have severe consequences, even when inadvertent. So, homeowners, board-members, and officers all need to be familiar with the federal laws that apply to HOA’s.
Americans with Disabilities Act of 1990 (ADA)
42 U.S.C. §§ 3601-3631 - Though not as generally applicable as the FHA, the ADA impacts the operations of homeowners associations with common elements open to the general public. The law was enacted in 1990 to prohibit discrimination against disabled persons in employment, transportation, public accommodations, communications, and access to government programs and services. For HOA’s, “public accommodations” is the most relevant activity, though a large association may also be ADA-regulated as an employer..
Fair Housing Act (FHA)
Enacted in 1968 to remove racial restrictions in the housing market, the Fair Housing Act 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.
The Servicemembers Civil Relief Act (SCRA)
The Servicemembers Civil Relief Act (SCRA) - 50 U.S.C. App. §§ 501–597b - The SCRA is intended to protect members of the U.S. Army, Navy, Air Force, Coast Guard, and Marine Corps from collections actions and foreclosures during their time in service. The law protects servicemembers on active duty, activated reservists, and members of the national guard active for more than 30 consecutive days. Unlike the FDCPA, the SCRA applies to all creditors, not just “debt collectors.”
Freedom to Display the American Flag Act
The Freedom to Display the American Flag Act of 2005 is unique among our list of federal laws impacting HOA’s in that it is expressly addressed to homeowners associations. The law prohibits common interest communities from adopting or enforcing policies, or entering into agreements, “that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association..."
Fair Debt Collection Practices Act (FDCPA)
Fair Debt Collection Practices Act (FDCPA) regulates “debt collectors” who regularly attempt to collect debts owed to third parties by consumers. 15 U.S.C. §1692a(6). The law requires certain notices to debtors, prohibits certain forms of communications, and generally bans harassment or abusive conduct by debt collectors toward consumers. 15 U.S.C. §1692b and c.
Over-the-Air Reception Devices Rule (OTARD)
Over-the-Air Reception Devices Rule (OTARD) - 47 CFR § 1.4000 - has been in effect since October 1996 and prohibits restrictions that impair the installation, maintenance or use of antennas used to receive video programming. Homeowners Associations cannot prohibit or adopt restrictions that: (1) unreasonably delay or prevent installation, maintenance or use; (2) unreasonably increase the cost of installation, maintenance or use; or (3) preclude reception of an acceptable quality signal.
The United States Bankruptcy Code
The bankruptcy code is immensely complicated, but, for homeowners associations, the important thing to know is that, if a member files bankruptcy, the association cannot take any actions to collect assessments subject to the bankruptcy case, including filing liens or civil complaints, while the case is pending or until the court issues an order lifting the “automatic stay.” 11 U.S.C. §362. Violations of the automatic stay can result in penalties imposed by the bankruptcy court, including, at minimum, having to return money or release a lien.