The Fair Housing Act (FHA) is a federal statute that prohibits discrimination against people who are purchasing or renting a home, or who belong to a housing development like a homeowners association. The statute makes it unlawful to discriminate on the basis of someone’s race, color, disability, etc. While the FHA seems straightforward, it can be a challenge for HOAs to determine how to balance the individual needs of owners or residents with the collective needs of the association. This article will cover the basics of the FHA, and provide some examples of when accommodations must be made; however, boards are always advised to speak with a lawyer if they need guidance about a specific issue.
What is the Fair Housing Act?
The federal Fair Housing Act protects people from discrimination when they are renting or buying a home, obtaining a mortgage, applying for housing assistance, or participating in other housing-related activities. Additional protections apply to federally-assisted housing.
In very rare circumstances, the Act exempts owner-occupied buildings that have fewer than five units, single-family homes sold or rented by the owner without the use of an agent, and housing operated by religious organizations or private clubs that limit occupancy to members.
The statute aims to prevent people from being discriminated against because of their:
- Familial Status
For example, an association could not prevent a buyer from moving in because of what they look like. Similarly, HOAs are not supposed to uphold rules that ban children from using the pool at certain hours. This is a large and complex topic, so we will only address how the FHA applies to people with disabilities in this article.
Who enforces this statute?
The Department of Housing and Urban Development and the US Department of Justice, brings actions against housing providers that violate the statute.
What roles does an HOA play when it comes to the FHA?
The duties assigned by the FHA apply to individuals, corporations, associations, and others “involved in the provision of housing and residential lending, including property owners, housing managers, homeowners, condominium associations, lenders, real estate agents, and brokerage services.”
That means HOAs, and any other housing providers, are required to follow the rules and do what they can to ensure owners and residents are not discriminated against. Requests from residents with disabilities for accommodations must be met if they are reasonable. An HOA may only deny a reasonable accommodation request if it would impose an undue financial and administrative burden on the association, fundamentally alter the nature of a policy, or would otherwise intrude on the rights of third parties.
What is considered an “undue burden?” Each situation is fact-specific and must be determined on a case-by-case basis. That’s what can make FHA issues so complicated. It is very possible that there is no simple yes or no solution. Furthermore, even if a requested accommodation is undue, the HOA may still need to work with the resident to come up with a suitable solution that each side finds reasonable.
What are reasonable accommodations?
Reasonable accommodations are required for people with disabilities. Under the FHA, a reasonable accommodation is defined as 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. That includes shared spaces. So, for example, an HOA may only take checks, but would agree to take online payments from someone with mobility issues.
Reasonable accommodations help remove barriers that prevent people with disabilities from enjoying the opportunities already available to people who do not have disabilities. HOAs cannot ask people who receive reasonable accommodations to pay extra fees or deposits. Similarly, they cannot place special conditions or requirements as a condition of receiving reasonable accommodations.
Not all people with disabilities will need reasonable accommodations. However, they do have a right to request or be provided a reasonable accommodation at any time.
What are reasonable modifications?
The FHA defines a reasonable modification as a structural change made to existing premises that allows a person to fully enjoy the premises. Reasonable modifications include structural changes to interiors and exteriors of homes, and to shared spaces. The installation of a ramp into a building, lowering the entry threshold of a unit, or adding grab bars to a bathroom are all examples of reasonable modifications.
The main difference between a reasonable accommodation and reasonable modification is that the former is a change to rules or procedures, while the latter is a physical modification made to a space.
Another big difference between the two is that the owner or resident is expected to pay for physical modifications. Conversely, if an accommodation came with a cost, the HOA would be expected to cover it.
While support animals can be categorized under reasonable accommodations, it is a topic worth addressing on its own. The FHA requires HOAs to allow a reasonable accommodation involving an assistance or support animal if:
- A request was made to the HOA by or for a person with a disability
- The request was supported by reliable and factual information
- Granting the request would not impose an undue financial and/or administrative burden on the HOA
- The request will not fundamentally alter the essential nature of any HOA rules or policies
- The specific assistance animal in question will not pose a direct threat to the health or safety of others
- The request will not result in significant physical damage to the property of others
Examples of reasonable accommodations
These are common examples of reasonable accommodations that HOAs generally must comply with:
- Providing and assigning an accessible parking space for an owner with a mobility impairment
- Giving a resident the opportunity to transfer to a ground-floor unit
- Adjusting a payment schedule to accommodate an income assistance schedule
- Allowing someone to submit a housing application through email or letting a family member drop it off on behalf of the applicant
- Permitting an assistance animal in a “no pets” association for a person who is deaf, blind, experiences seizures, or has a mental disability
Examples of reasonable modifications
These are common examples of reasonable modifications that HOAs generally must comply with:
- Widening doorways to make rooms more accessible for people who use wheelchairs
- Installing grab bars in bathrooms
- Lowering kitchen cabinets so that people in wheelchairs can easily reach them
- Adding a ramp to make a primary entrance more accessible
- Altering a walkway to provide access to a shared space
- Changing locks so that owners can use FOBs instead of traditional keys
What happens if the FHA rules are ignored?
The civil penalty for violating the FHA statute goes as high as $19,787 for a single violation, and can be as costly as $98,935 for multiple violations. Moreover, the HOA would likely have to pay the attorney’s fees of the opposing party if the HOA lost in court.
When a request for a reasonable accommodation or modification is made, HOAs are strongly encouraged to engage in an “interactive process” with the person making the request. In other words, the association should do its best to work collaboratively with the individual to find a solution that satisfies the requestor and the community.