Fair Housing Act Summary
The Fair Housing Act prohibits discrimination by HOAs. The Act applies to HOAs (and others associated with providing housing) whose discriminatory practices make housing unavailable (or restrict the use of housing) to persons because of:
- familial status
- national origin, or
- race or color.
Discrimination Based on Familial Status
The Fair Housing Act prohibits discrimination against families with children under 18. The Act prevents housing providers (including HOAs) from imposing any special requirements or conditions on families with children. For example, an HOA may not place an unreasonable restriction on the total number of persons who may reside in a dwelling, or restrict children from access to recreational services or amenities provided to other residents, such as the pool or exercise equipment.
Examples: The following are rules that violate the Act:
- Setting an “adults only” time for use of the pool.
- A restriction that states, "children are prohibited from loitering and playing in hallways."
- A restriction that states, “children under 17 are not allowed in the pool without supervision.”
"55 & Older" Communities. In most instances, the Fair Housing Act prohibits an HOA or a housing provider from prohibiting or refusing rental or sale to families with children. However, some facilities may be designated as Housing for Older Persons (55 years of age). This type of housing, which meets the standards set forth in the Housing for Older Persons Act of 1995, is exempt from the prohibition of discrimination against families. In other words, properly established “55 & Older” communities can discriminate against families and children by regulating or restricting children and prohibiting sale or rental to families with children.
If you are in an age restricted community (e.g., a 55 & older community), there are specific requirements that must be followed on an ongoing basis by the association, including establishing procedures and performing periodic surveys (see HOPA Summary). In order to avoid jeopardizing the association’s status as an age restricted community, it is important to work with an attorney experienced in these issues to adopt procedures and carry them out in compliance with the law.
Discrimination Based on Disability
The Fair Housing Act prohibits discrimination on the basis of disability in all types of housing transactions (including any HOA matter). It’s important to realize that discrimination against a person with a disability is unlike any other type of discrimination. At the core of the policy against discrimination is the concept that everyone should be treated equally. The Fair Housing Act, on the other hand, requires a person with a disability to be treated differently than everyone else. It requires that housing providers (including HOAs) give special treatment to a person with a disability when it is necessary to allow them to have an equal opportunity to enjoy their dwelling. Specifically, a person with a disability is entitled to “reasonable accommodations” (exceptions) in the rules, practices, or services of an HOA that are necessary for a person with a disability to use or enjoy a dwelling. So, while uniform enforcement of the governing documents and rules is very important as a general principle in an HOA, such uniform enforcement is actually against the law when a rule interferes with the use and enjoyment of a dwelling by a person with a disability.
1. Requests for Reasonable Accommodation
(companion/assistance animals, sign language interpreter, etc.)
Evaluating Requests.A person with a disability may request that an HOA grant an exception to its rules or policies to accommodate the person's disability (a “reasonable accommodation”). When considering a request for a reasonable accommodation, an HOA must normally evaluate whether: (1) the individual has a disability, (2) the requested accommodation is reasonable, and (3) the requested accommodation is necessary for the individual to use or enjoy a dwelling.
1. Disability. An individual is considered to have a disability if any of the following three conditions are met. A disability is: (a) a mental or physical impairment which substantially limits one or more major life activities, (b) a record of having such an impairment, or (c) being regarded as having such an impairment.
The term mental or physical impairment may include conditions such as orthopedic, visual, speech and hearing impairments, intellectual disability (once called mental retardation), alcoholism, drug addiction (other than addiction caused by current, illegal use of a controlled substance), chronic fatigue, learning disability, head injury, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, and emotional illness.
The term "substantially limits" suggests that the limitation is "significant" or "to a large degree."
The term "major life activity" means those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, speaking, and possibly working (the Supreme Court has questioned but has not yet ruled on whether "working" is to be considered a major life activity. See Toyota Motor Mfg, Kentucky, Inc. v. Williams, 122 S. Ct. 681, 692, 693 (2002)). This list of major life activities is not exhaustive.
2. Reasonable. To be reasonable, an accommodation cannot impose an undue financial or administrative burden on the HOA and the benefit of the accommodation to the person with a disability is weighed against the burden on the housing provider. Those things are determined on a case-by-case basis taking various factors into account, such as the cost, the resources of the provider, the benefit of the accommodation, and whether alternatives would meet the disability-related needs.
3. Necessary. For a requested accommodation to be necessary for the individual to use or enjoy a dwelling, the requested accommodation must affirmatively enhance the quality of life of the person with a disability by ameliorating the effects of the disability. In other words, there must be a nexus between the disability and the requested accommodation.
Pet Restrictions and Assistance Animals
A request by a person for an exception to an HOA’s pet restriction to allow a resident with a disability to have an assistance animal is considered a request for a "reasonable accommodation" under the Fair Housing Act (FHA). There are two types of assistance animals: (1) service animals, and (2) other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (a “support animal”). Persons with disabilities may request a reasonable accommodation for service animals and other types of assistance animals, including support animals, under the FHA.
An association must comply with the FHA when assessing a request for a reasonable accommodation to keep an animal. There are limitations regarding the type and amount of documentation an HOA may ask an individual with a disability to provide in support of an accommodation request for a support animal, including documentation of a disability (that is, physical or mental impairments that substantially limit at least one major life activity) or a disability-related need for a support animal when the disability or disability-related need for the animal is non-obvious and not known to the association.
An association is entitled to information that allows it to make a meaningful review and an informed decision on the request for the animal. For example, an association can request a copy of a note from a health care provider verifying that the owner has disability, recommending the use of an assistance animal to treat the owner’s disability, and verifying that the animal is necessary for the person with a disability to use and enjoy the person's residence. Such information must be kept confidential and may not be shared with other persons unless a person needs it in relation to the reasonable accommodation request. An association cannot request copies of the medical records of the person with a disability or more detailed information about the nature of the disability.
For more, see the questions and answers at Reasonable Accommodations Under the Fair Housing Act - Q & A. Also, see HUD's FHEO-2020-01 notice regarding assessing a person’s request to have an animal as a reasonable accommodation under the Fair Housing Act (pdf), which is intended to clarify and help “housing providers,” which include HOAs, respond to a request by a person with a disability to have an assistance (aka companion) animal.
Lying About Assistance Animal is Crime
Utah law makes it a crime for an individual to: (1) intentionally and knowingly falsely represent to another person that an animal is a service animal or a support animal; (2) knowingly and intentionally misrepresent a material fact to a health care provider for the purpose of obtaining documentation from the health care provider necessary to designate an animal as a service animal or a support animal; or (3) except for an individual with a disability, to use an animal to gain treatment or benefits only provided for an individual with a disability. See Utah Code § 62A-5b-106.
2. Requests for Reasonable Modifications
(modifications to the property)
The Act also requires an HOA or housing provider to permit a person with a disability to make reasonable modifications to the common area or to a unit. The modification is made at the expense of the person with a disability (unless it is to be used by anyone other than that person, or, if the HOA requires more expensive materials or options than those proposed by the person, then the HOA pays the difference). This is in contrast to an "accommodation." Accommodations are made by the housing provider (HOA) and can result in an expense to the HOA (unless it creates a financial burden on the HOA).
Some of the examples HUD has given of modifications that are typically considered reasonable include:
1. widening doorways to make rooms more accessible for persons in wheelchairs;
2. installing grab bars in bathrooms;
3. adding a ramp to make a primary entrance accessible for persons in wheelchairs; or
4. altering a walkway to provide access to a public or common use area.
Discrimination Based on Religion
The Fair Housing Act prohibits discrimination in housing (including HOA matters) based upon religion. This prohibition covers instances of overt discrimination against members of a particular religion as well less direct actions. An HOA board must be careful that any official HOA actions do not favor one religion or religious view over another religion or religious or non-religious view. The board members and officers must be careful to ensure their communications and actions do not apply inclusively or exclusively to a person or people because of their religion or lack of religion.
In Utah especially, for many communities, it may be tempting to include religious aspects in HOA settings, such as by including prayer in an HOA meeting. This is never advisable. In such a situation, a person of a different religion or of no particular religious belief may easily feel intimidated, outnumbered or otherwise feel that a hostile environment is being created and perpetuated by the HOA which could lead to a claim that the HOA is unlawfully discriminating by making housing unavailable or restricting the use of housing to people because of religion.
Discrimination Based on Sex, including Sexual Harassment
The Fair Housing Act makes it unlawful to discriminate in housing (including HOA matters) on the basis of sex. In recent years, the Department of Justice's focus in this area has been to challenge sexual harassment in housing. An HOA board and HOA officers must be careful to ensure their communications and actions do not target a person based on the person's sex.