Real Estate

HOAs and Housing or Enforcement Discrimination

By Will Van Vactor, J.D.
Whether you're on an HOA board, considering buying into an HOA, or a homeowner in a community governed by an HOA, you'll want to understand what discrimination-related laws apply to it.

Many condominiums and housing developments have homeowners’ associations (HOAs) that set rules and regulations that all residents of the community must abide by. These rules and regulations must be drafted, implemented, and enforced in a consistent, nondiscriminatory manner to avoid violating the federal Fair Housing Act (FHA). A violation of the FHA can lead to an expensive lawsuit against an HOA.

Federal Law Prohibits Housing Discrimination

The FHA prohibits discriminating against anyone in housing because of that person's race, color, national origin, religion, gender, familial status, or disability.

Sometimes housing discrimination can be obvious. It’s plainly illegal to not sell a house to a person because of that person’s race, for example.

Discrimination in housing matters, though, is often much subtler. For example, a rule that requires a front porch and steps to access a home may inadvertently prohibit the construction of a wheelchair ramp, resulting in a violation of the disability protections in the FHA.

HOAs Are Subject to the Fair Housing Act

The FHA applies to people and entities that are involved in the provision of housing. An HOA must comply with its obligations as a housing provider in at least a couple of ways.

First, if an HOA's governing documents give its board of directors the right to make housing decisions, such as whether to rent or sell a house, it must be careful not to make such decisions based on a person’s race, color, religion, sex, national origin, familial status, or disability.

Second, the FHA applies to organizations that set terms and conditions for housing, as well as organizations that provide facilities and services in connection with housing. HOAs are legal business entities, often formed as corporations, with governing documents called bylaws and a declaration of covenants, conditions, and restrictions (CC&Rs). These governing documents spell out a development's rules and regulations, which set terms and conditions for housing and also govern what facilities and services are provided by the HOA.

When an HOA’s governing documents control such things as who can use a community pool, where or whether members can place religious symbols on their property, or whether ramps can be used in lieu of porch steps, the HOA risks violating the FHA. An HOA should review its governing documents to make sure there is no discriminatory language included.

Additionally, the HOA must be sure to apply its rules and regulations consistently so that it doesn’t inadvertently apply the governing documents in a discriminatory manner.

HOAs Cannot Discriminate Based on Familial Status

An HOA can’t discriminate against community members or prospective community members because of family status. This includes families with children under the age of 18 and pregnant women.

A rule in the HOA’s CCRs that prohibits renting or selling a home to a family with children would violate this protection. Familial status issues also come up in the context of age restrictions for use of community facilities, like pools and exercise rooms. For example, an “Adult-Use Only” pool may violate the familial status protections in the FHA.

Some exceptions apply, though. First, an HOA can adopt a rule that is rooted in business necessity and is the least restrictive means by which to achieve what the rule is intended to address. Adopting a rule that prohibits minors from using a pool may be necessitated by the cost of insurance premiums, for example. However, a blanket prohibition may not be the least restrictive means of achieving lower premiums if the insurance company simply wants the HOA to require adult supervision for minors using the pool.

The FHA also provides an exception to its familial status protections if the development's intent is to provide housing for older people. To qualify for this exception, the development must meet certain conditions. All current residents, for example, must be age 62 or older.

HOAs Cannot Discriminate Against Disabled People

Discrimination against disabled people commonly occurs when an HOA refuses to make a “reasonable accommodation” or allow a “reasonable modification” for the disabled person's needs.

A reasonable accommodation is a change in rules, policies, practices, or services, that allows a disabled person an equal opportunity to use and enjoy a house or common area. If an HOA’s CC&Rs restrict pet ownership, for instance, the HOA may be required to make a reasonable accommodation by allowing a disabled person to have a support animal.

A reasonable modification is a structural change made to allow a disabled person the full enjoyment of a house or common facility. To avoid violating the FHA, an HOA may need to allow a disabled person to construct a wheelchair ramp to access a house, even if the ramp violates the CC&Rs. Reasonable modifications are typically made at the owner’s expense, not the HOA’s.

Exceptions apply to the reasonable accommodation/modification requirements in the FHA. For example, a request for reasonable accommodation that imposes an undue financial or administrative burden on the HOA might not be within the homeowner’s rights under the FHA.

To avoid disability claims against the HOA, it should adopt a reasonable accommodation/modification policy, and then apply it consistently to all owners. An attorney can help draft this policy.

How a Lawyer Can Help With FHA Discrimination Matters

In addition to (perhaps inadvertently) discriminating based on disability or familial status, an HOA might discriminate based on race, national origin, gender, and religion. The law related to housing discrimination is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic and a couple of the more common discrimination claims. For more detailed, specific information, please contact a real estate or civil rights lawyer.

Questions for Your Lawyer

  • My HOA won’t let my 17-year old (or anyone under the age of 18) use the community exercise room. Is this legal?
  • Is it okay for my HOA to allow Christmas lights on the exterior of houses, but prohibit other religious displays on the exterior of houses?
  • I’m concerned the board of my HOA is making decisions that may violate the FHA. As an assessment-paying member, I don’t want to have fund the legal defense when the HOA gets sued. What should I do?
  • I’m on my HOA board. Our insurance provider is requiring that we adopt a rule restricting pool access to only those over the age of 18 unless they are accompanied by a parent. To avoid violating the familial status protections in the FHA, what should we do?
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