Month: September 2020

Fair housing and HOA enforcement are key aspects of community association management, often creating conflicts among homeowners. Enforcement actions are frequently seen as one of the most contentious issues within a Homeowners Association (HOA). The Board of Directors must navigate enforcing the association’s governing documents while ensuring compliance with the Fair Housing Act (FHA), which prohibits discrimination based on race, color, disability, religion, sex, familial status, and national origin. Balancing fair housing requirements with consistent HOA enforcement remains a critical responsibility for association leadership.

Understanding Fair Housing Act (FHA) Compliance

Although associations are subject to the Fair Housing Act Regulations, few Boards are familiar enough to distinguish the multitude of ways they could expose the association to discrimination claims. Under FHA HOA requirements, an association may not legally refuse to make the reasonable accommodations necessary for homeowners to enjoy and utilize their homes fully. A common mistake a Board makes is failing to offer reasonable accommodations for homeowners with special needs or disabilities and basing their enforcement solely on the language of the governing documents rather than exploring the extenuating circumstances that may lead to an alternate decision. It is important to render enforcement case-by-case, making reasonable accommodations for homeowners when necessary.  

Examples of Fair Housing Violations in HOA Enforcement

Driveway Modifications for Accessibility

A Board denies a homeowner’s request to expand the width of their driveway to accommodate their wheelchair. The governing documents state that residents’ driveways cannot exceed 10 feet wide, this would violate the FHA. Governing documents cannot override fair housing requirements.

Service Animals and HOA Pet Policies

If an owner requires the assistance of a service animal, an HOA must waive its “no pets” policy. Refusing a reasonable and necessary accommodation that allows a disabled owner full enjoyment of their home violates the FHA.

Recognizing these implications and enforcing them reasonably can help an association avoid FHA violations, costly lawsuits, or severe penalties. Relying on professional management and legal experts helps communities stay FHA-compliant and avoid penalties.

Consistent and equitable enforcement in an HOA and a Community’s governing documents, including the CC&Rs, is critical in creating a balanced, successful Association.

Know the Governing Documents

The first step to consistent HOA enforcement is understanding the Community’s CC&Rs and Design Guidelines. Homeowners should read them thoroughly. Board members must also understand these governing documents. The Community Manager should ensure they are thoroughly familiar with all guidelines. Governing documents may also include specific requirements or restrictions for each unit/lot, and members should be aware of all conditions. This step is essential because each Community’s governing documents can vary greatly. HOA rules, including backyard rules, differ. For example, one Community may allow a 12-foot playground structure. However, your new Community may not permit this. You cannot assume rules are the same everywhere.

Regular Inspections

The second step to consistent HOA enforcement is scheduling regular compliance inspections per the Association’s Governing Documents. Regular inspections will help ensure that items not in compliance will be identified and addressed promptly. It is also essential that an appropriate HOA Fine Policy be established and approved by the Board of Directors. A Board-approved Fine Policy gives the guidance needed to help ensure that all residents follow the Community’s rules and that the consequences of non-compliance are reasonable.

Consistency

Lastly, “consistent” means constantly adhering to the same principles, course, or form. Consistent enforcement requires applying governing documents in every case. Each non-compliance issue should be treated the same, following the Board-approved Fine Policy. A Community Manager should not ignore a clear violation for one week and address it later. This standard also applies to the Board of Directors. They must support the consistent application of governing documents by the Community Manager. Board members should remain objective, even when compliance issues involve friends or neighbors.

Consistently enforcing CC&Rs and Design Guidelines builds trust with homeowners. This creates a foundation for a successful Association. The Community Manager and Board must apply all governing documents fairly and consistently. This approach fosters understanding and strengthens the community.

• HOA Selective Enforcement