TL;DR
- HOAs are not exempt from the Fair Housing Act (FHA): Assuming the FHA only applies to rental properties is a dangerous misconception. Homeowners Associations, condo boards, and community associations must fully comply with fair housing laws or face major legal liability.
- Disability and familial status are top vulnerability areas: Over 50% of FHA complaints involve disabilities (such as handling requests for reasonable accommodations, modifications, and emotional support animals). Additionally, rules that restrict families—like banning children from the pool after certain hours or strict occupancy limits—violate familial status laws unless the community legally qualifies as senior housing under HOPA.
- Inconsistent rule enforcement creates massive risk: HOAs must enforce all community covenants and rules consistently and fairly. Even a seemingly neutral rule can trigger a “disparate impact” violation if it disproportionately affects a protected class, and board members can even be held individually liable in lawsuits.
Table of Contents
The assumption that the Fair Housing Act (FHA) is exclusively a concern for rental properties is a dangerous misconception that exposes Homeowners Associations (HOAs) and property managers to significant legal liability. The fundamental legal truth is that the FHA applies to virtually all housing providers, including most HOAs and community associations. Failure to scrutinize the covenants, conditions, and restrictions (CCNRs) and rules of the HOAs you manage can quickly turn a minor policy detail into a major legal crisis.
This is a critical area of oversight, as many employees and individuals involved with non-rental entities—such as home developers, management companies, condo boards, and mortgage companies—are often unaware of or untrained on FHA compliance.
What Are the Biggest Areas of FHA Vulnerability for HOAs
The vast majority of FHA litigation stems from two specific protected classes: disability and familial status.
Disability: Over 50% of all Fair Housing Act complaints annually involve discrimination based on disability. The primary concerns involve requests for reasonable accommodations and modifications.
Modifications: If a resident requires installing a ramp for access—a reasonable modification—the HOA must generally allow it, though the expense is typically borne by the resident.
Emotional Support Animals (ESAs): An HOA must consider a resident’s request for an ESA* as a reasonable accommodation, even if the HOA has a strict “no pets” policy in its covenants. Denying this without a legitimate, FHA-compliant reason is a violation of the law.
Familial Status: This refers to the presence of children under the age of 18 in the household. HOAs cannot implement rules that effectively discourage or restrict families with children.
HOPA Exception: Limiting children is discriminatory unless the community strictly qualifies for housing for older persons under the Housing for Older Persons Act (HOPA). Seek counsel if you are unsure if your property qualifies.
Red Flags: Restrictive rules like “no children allowed in the pool after 6 PM” or specific occupancy limits (e.g., “only two people can occupy a two-bedroom unit”) disproportionately affect families and are major red flags.
Disparate Impact and Enforcement
Even policies that appear neutral on the surface can violate the law if their effect is discriminatory, a concept known as disparate impact. Additionally, inconsistent or non-biased enforcement constitutes discriminatory enforcement.
Example Scenarios:
- Strictly enforcing vehicle registration rules that disproportionately affect a protected category can create a discriminatory effect.
- An occupancy limit that seems neutral but disproportionately excludes larger families can create a disparate impact violation.
It is essential for property managers to ensure consistent, non-biased enforcement of all rules. While HUD recently issued a memo prioritizing cases of intentional discrimination due to a backlog, the disparate impact theory of liability still absolutely exists and is applied by courts.
Key Takeaways for Property Managers and HOA Boards
- Audit Your Rules: Proactively review governing documents, rules, and enforcement practices.
- Focus on Training: Diligently train all board members and decision-makers on FHA compliance.
- Understand Liability: A violation by the board can open the management company and individual board members up to liability, and vice versa. HOA board members can be individually named in FHA lawsuits.
- Seek Guidance: Ignorance of the law is not a defense, and legal compliance is always cheaper than litigation.
*For the most recent HUD memo regarding assistance animals, please click here.
