Fair Housing Act and HOAs

Federal and State Fair Housing laws mandate equal access and opportunity in housing, and these laws apply to homeowners associations (HOAs). In general, the Americans with Disabilities Act (ADA) does not apply to HOAs because they typically are not places of public accommodation. Rather, HOAs govern and/or own private property that is used and enjoyed by residents and their guests. The ADA requirements for improvements that are accessible to disabled persons are imbedded in current Pima County building codes. However, communities that were built before the applicable provisions of the building code went into effect are exempt from having to meet ADA standards in their common areas. If major renovation is undertaken in a clubhouse, for example, the ADA standards would have to be followed in conjunction with other applicable building codes.

In Arizona, the Fair Housing Act is designed to protect against discrimination in the sale or rental of a dwelling, or in providing services or facilities in connection with the sale or rental on the basis of age[1], race, religion, national origin, gender, disability, or familial status [A.R.S. §41-1491.14]. A reader of this newsletter has recently encountered difficulty in representing a potential buyer, who is in a wheelchair. The buyer’s housing needs would be best met by living in a condominium or townhouse. The Realtor© located several dwelling units that might have been suitable for the buyer; however, the common area sidewalks did not afford acceptable access. The concerned Realtor© is wondering whether an HOA is required to make or allow needed adaptations.

The obligations of an HOA to disabled persons are to make reasonable accommodation and to allow reasonable modification. Thus, an HOA needs to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling [§3604(f)(3)(B) of the Federal Fair Housing Act, Title 42 of the United States Code]. Examples of reasonable accommodations are: the use of a motorized scooter in an area where motorized vehicles generally are not allowed; the keeping of an assistive pet or an emotional support pet when an HOA has a “no pet” restriction; assignment of a parking space near a resident’s dwelling unit to accommodate his limited mobility; allowing parking of a disabled person’s vehicle in an area where parking or parking of the particular type of vehicle is prohibited.

A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises.   Reasonable modifications may include structural changes to exteriors of dwellings and to common and public use areas. Under the Fair Housing Act, the HOA must allow the modification, but the unit owner or resident is responsible for paying the cost of the modification. Thus, a resident must be allowed to install a ramp outside his building in a common area; however, the resident must pay the expense of installation and must get approval from the Association before the modification is made.   The request cannot be denied, however, unless there is some aspect of the request that is not reasonable.

In some cases, an HOA may be willing to bear the expense and follow the procedure required by the local municipality to install a curb cut for handicap access in common areas. Therefore, if a disabled person needs a reasonable modification that may benefit others in the community, the person should request the HOA Board to undertake the work at the Association’s response.

Other issues that arise under the Fair Housing Act are:

1. What kinds of information may an HOA request from a resident with a disability in support of a requested reasonable modification or accommodation?
2. Who qualifies as a person with a disability under the Act?
3. If an HOA’s CC&Rs prohibit the operation of a business, can an owner operate an elder care home or other type of group home in the community?
4. In an age restricted community, does an age restriction violation have to be allowed if the underage person is rendering care to a disabled occupant of the dwelling unit?

Further information about compliance with the Fair Housing Act can be found on the website of the Southwest Fair Housing Council http://www.swfhc.com, a local organization that provides information and assistance for housing issues that pertain the Fair Housing Acts.

[1] Age-restricted communities that meet the requirements for an exemption under the Fair Housing Acts may discriminate on the basis of age.

Written by: Carolyn B. Goldschmidt
February 2012