Potential Fair Housing Implications in Enforcement Actions
Community association enforcement actions tend to be a conflicting topic for many homeowners and are often viewed as one of the most contentious issues they may face while living in a Homeowners Association (HOA). Additionally, the Board of Directors is faced with enforcing the Association's Governing Documents, while also being mindful of the Fair Housing Act (FHA), which makes it unlawful for housing providers to discriminate based on race, color, disability, religion, sex, familial status and/or national origin.
Although HOAs are subject to the FHA, few Boards are familiar enough to distinguish the multitude of ways they could be exposing the HOA to claims of discrimination. Under the FHA, an HOA may not legally refuse to make reasonable accommodations necessary for homeowners to fully enjoy and utilize their homes. A common mistake a Board makes is failing to offer reasonable accommodations for homeowners with special needs or disabilities and basing their enforcements solely off the language of the governing documents, rather than exploring the extenuating circumstances that may lead to an alternate decision.
It is important to render enforcements on a case by case basis, making reasonable accommodations for homeowners when necessary.
For example, if a Board denies a homeowner's request to expand the width of their driveway to accommodate their wheelchair due merely to the fact that the governing documents state that residents' driveways cannot exceed 10 feet in width, the Board would be in violation of the FHA.
Another example includes service animals. If an owner requires the assistance of a service animal, an HOA would be obligated to grant a waiver from its "no pets" policy. Refusal to make such an accommodation (one that is reasonable and necessary to afford a disabled owner the full enjoyment and use of his/her home) is deemed to be discriminatory under the FHA.
Knowing how to recognize these implications, delegate reasonable enforcements and avoid an FHA violation altogether can greatly save an Association from costly lawsuits or other severe penalties. The best way for a community to avoid penalties for non-compliance with the FHA is to lean on the expertise of a professional community association management company and trusted legal professional.