Hoa Discrimination: Understanding The 80/20 Rule And Your Rights

Homeowners' Associations (HOAs) are a common feature of many condominium and housing developments, with around 20% of the US population living in communities governed by them. HOAs set rules and regulations for community residents to follow, but these must be drafted, implemented, and enforced in a consistent, non-discriminatory manner to avoid violating the federal Fair Housing Act (FHA). This Act, enforced by the US Department of Housing and Urban Development (HUD), prohibits discrimination in housing on the basis of race, colour, national origin, religion, gender, familial status, or disability. Despite this, HOAs have been known to discriminate, for example, by restricting access to community facilities for those under 18 or prohibiting religious displays. This has led to concerns about violations of the FHA and potential lawsuits against HOAs. Understanding the FHA and its protections is crucial for both HOA boards and community members to ensure fair and equal treatment for all.

HOA rules and regulations must be drafted, implemented, and enforced in a consistent, non-discriminatory manner

Homeowners' Associations (HOAs) are responsible for setting rules and regulations that all community residents must abide by. However, they must be careful to ensure that these rules are drafted, implemented, and enforced in a consistent and non-discriminatory manner to avoid violating the Fair Housing Act (FHA) and facing legal consequences. The FHA, enforced by the U.S. Department of Housing and Urban Development (HUD), prohibits discrimination in housing based on race, colour, religion, sex, familial status, national origin, and disability. This includes discrimination against community members, prospective members, or homeowners with disabilities or specific familial statuses.

HOA rules must be carefully considered and cannot be created arbitrarily or with discriminatory intent. For example, an HOA cannot decide to ban a particular colour for houses based on personal preference. Rules must be created for the benefit of the community and follow proper procedures, including obtaining feedback from homeowners and voting. Additionally, rules that have not been historically enforced may be difficult to implement suddenly, as members may dispute their enforceability.

To avoid discrimination, HOAs should refrain from targeting specific members or protected classes of people. This includes avoiding selective enforcement of rules, whether due to personal biases or other reasons. Rules must be applied fairly and consistently among all members. If an HOA is found to be discriminating against an individual for personal reasons or through uneven enforcement, it could face legal repercussions.

While HOAs have some flexibility in creating rules, they must not infringe upon the constitutional rights of their members or guests. For example, HOAs in Florida cannot prohibit certain plants on their members' properties or ban electric vehicle charging stations. Additionally, they must allow reasonable accommodations for disabled individuals, such as permitting service animals if pet ownership is restricted.

It is important for HOA boards to be aware of both federal and state laws regarding discrimination and fair housing to ensure their rules and regulations comply with legal requirements. In some states, such as California, the list of protected classes is more comprehensive, including gender identity and medical condition. Understanding these laws is crucial to avoid costly lawsuits and provide fair treatment to all community members.

The FHA prohibits discrimination based on race, colour, national origin, religion, gender, familial status, or disability

Homeowners' Associations (HOAs) are commonplace in the US, with around 20% of the population living in communities governed by them. HOAs set rules and regulations that all community residents must abide by. However, they are not exempt from federal laws and the Fair Housing Act (FHA) in particular. The FHA prohibits HOAs from discriminating against anyone in housing because of that person's race, colour, national origin, religion, gender, familial status, or disability.

The FHA, enforced by the U.S. Department of Housing and Urban Development (HUD), applies to people and entities involved in the provision of housing, including HOAs. This means that HOAs must apply their rules fairly among their members and refrain from discrimination. If an HOA appears to target a specific member or a protected class of people, the rules in question could be deemed unenforceable in a court of law.

Discrimination against disabled people, for example, occurs when an HOA refuses to make a "reasonable accommodation" or to allow a "reasonable modification" for the disabled person's needs. A reasonable accommodation is a change in rules, policies, or services that allows a disabled person an equal opportunity to use and enjoy a house or common area.

HOA rules and regulations must be drafted, implemented, and enforced in a consistent, nondiscriminatory manner. This means that an HOA cannot, for instance, prevent buyers from purchasing a house in the community or make it difficult for them to do so based on discriminatory reasons.

In addition to federal laws, some states have also enacted their own Fair Housing laws. For example, in California, the list of protected classes is more comprehensive, including gender identity, medical condition, and genetic information.

HOAs cannot adopt rules that promote or facilitate selective enforcement

Homeowners' Associations (HOAs) are responsible for setting rules and regulations that all community residents must abide by. However, they must exercise caution to ensure that their rules are drafted, implemented, and enforced in a consistent and nondiscriminatory manner. This is to avoid violating the federal Fair Housing Act (FHA), enforced by the U.S. Department of Housing and Urban Development (HUD).

The FHA prohibits discrimination in housing based on an individual's race, colour, national origin, religion, gender, familial status, or disability. This includes discrimination against community members or prospective members due to family status, such as families with children under the age of 18 or pregnant women. For example, a rule prohibiting the sale or rental of a home to a family with children would violate the FHA. Similarly, an "Adult-Use Only" pool rule could violate the familial status protections in the FHA, unless it is rooted in business necessity and is the least restrictive means to achieve the intended outcome.

HOAs must also be mindful of making reasonable accommodations for individuals with disabilities. If an HOA refuses to make reasonable accommodations or allow reasonable modifications for a disabled person's needs, it could be considered discrimination.

In addition to explicit discrimination, HOAs must also be cautious of selective enforcement of their rules. Selective enforcement occurs when an HOA enforces a rule against only one homeowner or a small group of homeowners and not against the entire community. This can create a distorted view of expectations and make it challenging for future boards to fulfill their obligations.

To avoid selective enforcement, HOA boards should follow the enforcement process outlined in their governing documents and strive to be as fair and objective as possible when issuing violations. They should also be mindful of the potential for unconscious bias or unequal enforcement, as this can lead to legal battles and unnecessary expenses.

In conclusion, HOAs must adopt and enforce rules that are consistent, nondiscriminatory, and in compliance with federal, state, and local laws. By doing so, they can maintain the value and aesthetics of the development, keep owners safe, and preserve peace and happiness in the neighborhood without infringing upon the rights of their members.

HOA rules and covenants cannot infringe upon the constitutional rights of their members or guests

In addition to federal law, HOA rules and covenants must also comply with state and local laws. For instance, in Florida, HOAs cannot prohibit certain plants on their members' properties, and they must allow members to install electric vehicle charging stations and clotheslines. Furthermore, HOA members have the right to question a sudden increase in monthly HOA fees and to inspect HOA financial documents. They can also take formal action if they deem certain rules to be unfair, outdated, or discriminatory.

While the industry argues that HOA boards and managers are not considered "state actors," and therefore not subject to constitutional protections, this view has been challenged in court. For example, in a case in New Jersey, the ACLU successfully argued that the Constitutional rights to free speech and expression outweigh the private interests of an HOA. Similarly, in Texas, a small Jewish congregation prevailed in a lawsuit against an HOA that had intervened to prevent them from using a home as a synagogue, citing the Texas Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act of 2000.

It is important to note that HOA rules and covenants can be complex and vary from state to state. While HOAs have a responsibility to enforce rules and maintain community standards, they must do so within the boundaries of the law and without infringing upon the constitutional rights of their members or guests.

Federal laws protect HOA members from discriminatory actions

Federal laws are in place to protect members of an HOA from discriminatory actions. The Fair Housing Act (FHA) is a federal law that prevents housing discrimination against any person based on race, colour, national origin, religion, gender, familial status, or disability. The FHA applies to people and entities involved in the provision of housing, including HOAs. This means that an HOA cannot discriminate against community members or prospective members based on family status, including families with children under the age of 18 and pregnant women. For example, an HOA rule prohibiting renting or selling a home to a family with children would violate the FHA.

Additionally, an HOA must be careful not to make housing decisions based on a person's race, colour, religion, sex, national origin, familial status, or disability. This can occur in subtle ways, such as if the board decides that someone "just doesn't fit in". An HOA must also be careful not to inadvertently discriminate against individuals with disabilities. For instance, an HOA rule that forbids homeowners from altering a home design with a front porch and steps could inadvertently prohibit the construction of a wheelchair ramp, violating the disability protections in the FHA.

The FHA also provides an exception to its familial status protections if the development's intent is to provide housing for older people. All current residents must be 62 or older for this exception to apply. Discrimination against disabled people can also occur when an HOA refuses to make "reasonable accommodations" or allow "reasonable modifications" for the needs of a disabled person.

Under the FHA, an HOA can be held liable for discriminatory conduct by its board, directors, employees, and residents. This includes instances of discriminatory harassment, such as when an HOA security guard utters racial slurs at Black and Hispanic residents, or when a board member requires a Muslim condo owner to leave his backpack outside before attending a meeting. An HOA must take action to address any alleged discrimination by residents or other people within its authority.

If an HOA violates the FHA, it can lead to an expensive lawsuit against the association. A person has the right to file a separate private civil lawsuit against an HOA in the Federal District Court within two years of the most recent date of the alleged discriminatory action. Additionally, a person may file a complaint with their state's fair housing agency, local Fair Housing and Equal Opportunity (FHEO), or HUD in three different ways.

Frequently asked questions