Once a plaintiff shows an association is treating residents or potential residents differently due to their familial status, the association can avoid liability if it can “establish that rules constitute a compelling business necessity and that used the least restrictive means to achieve that end.” Fair Housing Council v. City of Richmond Heights, 209 F.3d 626 (6th Cir. Reasonable limitations on the number of people who can reside in a dwelling are generally acceptable if they serve a legitimate purpose, but an unreasonable limitation that seems intended to keep families out may be actionable. So, even if an association has no intention of discriminating against families with children, if it enforces a policy that ultimately results in families with children having less access, the HOA may have FHA exposure. Under considerable Federal court precedent, FHA discrimination may be found even if a policy does not, on its face, directly target, or even mention, a protected class-if the policy has a “disparate impact” on a protected category.Ī “disparate impact” occurs when the consequence of a policy or action is that a protected class is disproportionately adversely affected. Instead of declaring, “children shall not run on the pool deck,” a rule might be phrased as “no running is permitted on the pool deck.” This is a somewhat effective approach, but it’s not foolproof. To mitigate potential liability, most associations avoid rules specifically mentioning children.

And a community cannot adopt rules requiring all families with minor children to live in one part of the development or section of a building. So, a provision charging higher assessments, use fees, or security deposits to homes with minor children would violate the law. Likewise, special requirements or conditions imposed on residents with children can lead to FHA liability for an association. Housing Opportunities Project for Excellence, Inc. Rules expressly limiting children’s access to common areas usually violate the FHA.

A California court ruled that validly enacted restrictive covenants should be enforced “unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents, or violates a fundamental public policy.” Nahrstedt v. ‘If we all agree to keep our yards well-maintained and our houses painted nice-looking colors, we all benefit from a more attractive neighborhood with higher property values.’Ĭourts view HOA restrictions along the same lines as any contract and presume the restrictions are enforceable unless there’s a specific reason why the restriction should not be enforced. You accept a limitation on how you can use your property because, if everyone else in the community does, too, the neighborhood as a whole will be better off. For homeowners, the restrictions are something of a trade-off. Restrictive covenants in homeowners’ associations are not unusual-nearly every community has them.

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