POA/HOA and the Fair Housing Act

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Click this link to file your complaint:  www.hud.gov

Federal Law Prohibits Housing Discrimination

The Fair Housing Act prohibits anyone from refusing to sell or rent housing to a possible buyer or tenant based on that person’s race, color, religion, sex, or national origin. This act also prohibits housing discrimination based on family status. A seller or landlord cannot refuse to sell or rent to a buyer or renter who is a parent or guardian of a person under the age of 18.

An HOA’s regulations often give the board of directors the right to approve new buyers or renters. Because an HOA must follow the rules of the Fair Housing Act, an HOA board cannot reject a new resident based on the person’s race, color, religion, sex, national origin, or familial status.

The federal Fair Housing Act and Fair Housing Amendments Act (42 U.S. Code §§ 3601-3619, 3631) prohibit landlords from choosing tenants on the basis of a group characteristic such as race, religion, ethnic background, sex, familial status or disablity.

Sorry sir, this part of the forest is not zoned for religious use
Sorry sir, this part of the forest is not zoned for religious use

“It shall be unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or the provision of services or facilities in connection therewith, because of race,color, religion , sex, familial status, or national origin 42 U.S.C. 3604(b)”

The FHA applies to:
♠ Direct providers of housing;
♠ Entities and associations that set terms and conditions for housing; and
♠ Entities and associations that provide services and facilities in connection with housing

Courts have held that the FHA Applies to Community
Associations — including POA’s HOA’s and Condo Associations.
♠ Community Associations set rules and covenants that apply to homeowners.
♠ Community Associations provide services or facilities in connection with housing.

♠ Thus, Community Associations are “housing providers” under the FHA.

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♥ Block v. Frischholz, 587 F.3d 771 (7thCir 2009)Plaintiff, an orthodox Jew, sued Condominium Association and Board president for religious discrimination because Board refused to allow
him to have a religious display on his exterior door.

♥ The FHA Applies to Community Associations cont.Housing Opportunities Project for Excellence, Inc. v.
Key Colony No. 4 Condominium Assoc., 510 F. Supp. 2d 1003 (S.D. Fla. 2007)Plaintiff sued HOA and HOA board members under FHA and Florida housing laws claiming that occupancy restrictions and rules for pool and clubhouse discriminated against families with children.

♥ The FHA Applies to Community Associations Savanna Club Worship Service, Inc. v. Savanna Club
Homeowners’ Association, 456 F. Supp. 2d 1223 (S.D. Fla. 2005)Owners of a religious club sued HOA and board members because the HOA prohibited religious services in common areas
Note: The Court dismissed the Plaintiff’s claims because the HOA applied its restrictions in a neutral manner. The Court recognized, however, that HOA’s are governed by the FHA since they control and regulate certain property rights, such as use of common areas and facilities.

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Community Associations:
Restrictive Covenants
♠ Courts across the country have allowed lawsuits to proceed based on discriminatory covenant enforcement.
♠ Racially-restrictive covenants were a major reason for the implementation of the FHA in 1968.
♠ Currently, race, religion, and national origin are major areas of enforcement and risk for
Community Associations.

Community Associations:
Restrictive Covenants cont.Tokh v. Water Tower Court Home Owner Association, 327 Fed. Appx. 630 (7
thCir. 2009).In Tokh, a member of an HOA sued his HOA and its Management Company for national origin and race discrimination after being fined for enlarging a patio in violation of the HOA’s covenants.

Jamestown, America's first Property Owners Association.

Jamestown, America’s first Property Owners Association.

Potential FHA violations
♠ HOA allows religious groups to use a community chapel facility but not non-religious groups
♠ Condominium Association waives fee for Boy Scouts of America to use community room for free but charges other groups
♠ Community pool establishes “adult swim” hours
♠ Community Association-controlled golf course restricts men from playing on Tuesday mornings

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Civil Violations
♦ Civil Penalties include fines of up to $10,000 for a violation of the FHA and up to $74,000 for multiple
violations
♦ Injunctive and equitable relief to stop and change practices and policies that violate the FHA
♦ Payment of Court costs and attorneys’ fees to the Government
♦ Individual penalties and liability for board members and other individuals!!

Criminal Penalties
♦ Violations of the FHA that involve threats, intimidation, or violence can also lead to criminal fines and imprisonment.

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How can a renter file a discrimination complaint?

A POA-HOA member who thinks that an HOA has broken a federal fair housing law should contact a local office of the U.S. Department of Housing and Urban Development (HUD), the agency that enforces the Fair Housing Act, or check the HUD website at www.hud.gov. (POA-HOA members must file the complaint within one year of the alleged discriminatory act.)

HUD will provide a complaint form (POA-HOA members can fill the form out online) and will investigate and decide whether there is reasonable cause to believe that the fair housing law has been broken. If the answer is yes, HUD will typically appoint a mediator to negotiate with the HOA and reach a settlement (called a “conciliation”). If a settlement is later broken, HUD will recommend that the Attorney General file a lawsuit.

If the discrimination is a violation of a state fair housing law, the tenant may file a complaint with the state agency in charge of enforcing the law. In California, for example, the Department of Fair Employment and Housing enforces the state’s two fair housing laws.

Also, instead of filing a complaint with HUD or a state agency, tenants may file lawsuits directly in federal or state court. If a state or federal court or housing agency finds that discrimination has taken place, a tenant may be awarded damages, including any higher rent paid as a result of being turned down, an order directing the landlord to offer the rental to the tenant, and compensation for humiliation or emotional distress.

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To read The Fair Housing Act Click here!