discrimination

There are a number of anti-discrimination laws.  Not all of them apply to homeowner associations, but the important one that does is the Federal Fair Housing Act.

1. Federal Fair Housing Act (FFHA), 42 U.S.C. §3601 et seq.  Applies to HOAs and requires reasonable accommodations in rules and policies to allow the disabled to use and enjoy their dwellings.  Reasonableness is determined by weighing the benefit of the accommodation against the burden on the association.  The requesting person bears the cost associated with the disability accommodation.  Claims under FFHA must be made within two years of incident of alleged discrimination. (Telesca v. The Village of Kings Creek Condominium Association, Inc., No. 09-13910, U.S. App. Ct., 11th Cir., Aug. 2, 2010).

See Summary of Fair Housing Act (Federal) for a more detailed summary.

2. Utah Fair Housing Act (UFHA), Utah Code Title 57, Chapter 21.  UFHA is the Utah equivalent of the FFHA.  UFHA applies to homeowners associations and requires reasonable modification of an association's rules and policies to allow a disabled person equal opportunity to use and enjoy the premises.  It is administered by the Utah Antidiscrimination and Labor Division (UALD).

3. Utah Rights and Privileges of an Individual with a Disability, Utah Code Title 62A, Chapter 5b.  This chapter of Utah law makes it a crime to interfere with the exercise of the right of a person with a disability to an assistance animal, as well as to falsely represent an animal as an assistance animal or lie to a healthcare provider to obtain documentation from the healthcare provider, or to use an animal to gain treatment or benefits only provided for an individual with a disability when the person does not have a disability.

4. Americans with Disabilities Act (ADA).  The ADA generally does not apply to homeowner associations.  Indep. Housing Services v. Fillmore Ctr., 840 F. Supp. 1328 (N.D. Cal. 1993).  However, if an association were to open its facilities to the public (not merely HOA members and their guests), then ADA regulations would apply.  For instance, HOAs such as "condotels" that directly accommodate nightly rentals by providing a check-in desk and where guests are not able to choose which unit they stay in, are typically considered to have opened their facilities to the public and are subject to the ADA.

5.  Discriminatory housing practices regarding real estate -- Existing real property contract provisions, Utah Code § 57-21-6.1.  This statute:

  • says that CC&Rs (or any recorded covenant) that expresses any preference, limitation, or discrimination based on race, color, religion, sex, national origin, familial status, source of income, disability, sexual orientation, or gender identity is void and that enforcement of such a covenant constitutes discrimination;
  • requires a board to investigate a claim that the association's governing documents include such a discriminatory provision within 90 days of an owner's request to remove the provision;
  • allows a condominium or community association to amend the association's governing documents to remove a discriminatory restrictive covenant without any vote or approval of the association members; and
  • prevents a county recorder from charging a fee for recording such an amendment.

Recommendation: Boards should immediately consult legal counsel whenever the association receives a request for reasonable accommodation or an allegation that the association is in violation of anti-discrimination laws.  Boards should also review the recorded governing documents for any discriminatory provisions and, if one is found, consult an attorney and remove the provision by amendment (no vote of the owners is needed).

Statutes and Cases:

(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)

Discriminatory housing practices regarding real estate -- Existing real property contract provisions. - Utah Code § 57-21-6.1.
New 2021 HOA Laws and What They Mean For Your HOA
Reasonable Accommodations under the Fair Housing Act - Q & A
Reasonable Modifications under the Fair Housing Act - Q & A
Rights and Privileges of an Individual with a Disability. Utah Code Title 62A, Chapter 5b
Summary of Fair Housing Act (Federal)
United States v. Fox Point at Redstone Association, Inc., No. 2:11-cv-01069 (discrimination, assistance animal)