Homeowner associations are a little different than landlords, but still subject to the same laws and the same risks that landlords take when they’re screening tenants. HOAs have the additional burden of having the potential of a disparate impact claim against them for having unfair or unjust association rules and regulations or bylaws, and also for not enforcing them consistently. HOAs get in trouble because many of the board members are volunteers. So when these volunteers craft new rules and regulations for pet sizes and restrictions, or the allowance of rentals, or simple things like children not being allowed to play outside of certain buildings, they can get into trouble. Any time you specify a child or a unique circumstance, make sure it’s in compliance with fair housing laws. Prohibiting children from playing outside of Building 6, for example, would be a violation of the familial status HUD rules, and it would get an HOA in trouble.
HOA Tips: Reasonable AccommodationsYou also need to be sensitive to making reasonable accommodations to the homeowners who are in the association. Boards make the mistake of denying or not allowing reasonable accommodations for people with disabilities. This would include handicapped parking, a homeowner who wants to expand the width of a driveway to accommodate a wheelchair, and other potential claims against homeowner associations for violating disability and reasonable accommodation laws. So, be careful. Any modifications to your rules and regulations, even simple ones like children playing, need to be run through your attorney who understands HOA law and is representing your association. All new regulations need to meet the letter of the law and the spirit of the law with HUD. A violation claim and litigation can ruin an HOA’s finances very quickly.
HOA Tips: Service AnimalsService animals is another area that gets HOAs in trouble. Service animals are ADA-allowed accommodations that are required. The association can ask for documentation that supports that the animal is a certified service animal. Those forms are available on the HUD website, and a veterinarian or a physician can also provide verification. However, once they are provided, the HOA must accommodate the service animal. Any harassment done by neighbors could be considered a discriminatory act. Boards need to be sensitive to these sorts of things.
HOA Tips: ConsistencyHOA boards have to look at their rules and enforce them consistently. Disparate impact is one of the biggest issues facing landlords and HOA boards right now. If you don’t fairly, evenly, and consistently apply the regulations, or you make an exception, you’re opening the door to litigation for disparate impact. That can include tenant screening. Many HOAs require homeowners to provide screening criteria, and when an HOA requests that, it opens the door quite broadly for the HOA to be included in a discrimination lawsuit. Allowing one tenant versus another can get you in trouble. HUD is actively and aggressively pursuing this and even considering discrimination a criminal matter. The requirements in your rules and regulations such as screening criteria or results can land the HOA board in deep water if you don’t have documentation that supports a consistent application of the rules.
This is a thorny patch to walk into as a volunteer board member. Make sure you have insurance that includes discriminatory acts, and make sure you’re covered. You never know if and when a claim will arise. You need good information, and you must follow the law.If you have any questions about Minnesota HOA management or you’d like to talk more about HOA discrimination, please contact us at 33rd Company.