Homeowners' associations (HOAs) are legal entities created to maintain common areas in various types of real estate developments, such as condominiums and subdivisions. Depending on the type of development, membership in the HOA usually is automatic upon becoming a property owner in the development. HOAs have the authority to enforce the restrictions found in the homeowners' property deeds.

An HOA gets its power and authority from a variety of legal documents, including the HOA's governing documents and federal and state laws. The HOA governing documents consist of the declaration of covenants, conditions and restrictions (CC&Rs), the articles of incorporation, the bylaws, and the rules and regulations adopted by the HOA's board.

Homeowners' associations have the power to enforce the CC&Rs and to manage the common amenities of developments but they can't do so in a discriminatory way. Fair housing laws protect residents against discrimination in housing.

Federal Laws

Homeowners' associations often reserve the right to approve or reject new residents. Such approval or rejection can't be based on race, color, religion, sex, handicap, familial status or national origin because this would violate the Fair Housing Act.

The Fair Housing Act makes it against the law to deny persons with disabilities reasonable accommodations or the right to make reasonable modifications to a dwelling when the accommodations or modifications are needed for them to fully enjoy their homes.

The actions, policies and governing documents of homeowners' associations must comply with the Americans with Disabilities Act (ADA). Homeowners' associations must comply with anti-discrimination laws that apply to disabled persons, or run the risk of facing lawsuits and legal expenses.

The ADA applies to "public accommodations," which may include facilities that are part of a common interest development if they are open to the public, such as when an HOA leases a facility to the public in exchange for money. If a facility located within a common interest is open only to association members, not to the public, then such facility probably isn't a public accommodation under the American with Disabilities Act.

Protection of Children and Senior Citizens

Generally, a homeowners' association may divide a project into adults-only and family areas when the division is approximately equal. When accommodations are designed to meet the physical and social needs of senior citizens, housing may be established and preserved unless federal prohibitions against discrimination on the basis of familial status apply. Federal law prohibits discrimination against families with children under 18.

In Arizona, an HOA may not prohibit the temporary display of a cautionary sign pertaining to children playing or prevent resident children from playing on a residential road with a posted speed limit of 25 miles per hour or less when the road is under the authority of the HOA.

Protection of Disabled Persons

The Fair Housing Act prohibits discrimination against persons with disabilities. A homeowners' association may not use disability as a factor in making decisions on the approval of a new occupant. Refusing or discouraging a sale because of disability is a violation of the Fair Housing Act.

Homeowners' associations are required by the Fair Housing Act to allow reasonable modifications to housing, such as the installation of a ramp, paid for by an occupant with disabilities so that a occupant with a disability may use and enjoy the premises. They are also required to make reasonable accommodations in rules, such as those governing parking, to enable an occupant with disabilities to use and enjoy the dwelling.

If a common area or facility is deemed a public accommodation, the ADA requires HOAs to take certain actions with respect to architectural barriers that exist on the association's premises and with respect to the association's governing documents. An HOA may be in violation of the ADA if it fails to remove architectural barriers in existing facilities where such removal is "readily achievable" by the association. However, the ADA also allows for some barriers to remain if the cost of removal is overly burdensome to the association. Architectural barriers could include the non-existence of ramps for wheelchairs, inaccessible restroom and/or shower facilities, or any other structure which prohibits or prevents a disabled person from accessing the public accommodation.

A homeowners' association can be deemed out of compliance with the ADA either through its rules and policies, or through its possible architectural barriers.

Questions for the Attorneys at Halpern Rodriguez, LLP

• Is it legal for a homeowners' association to divide a project into adults-only and family areas?
• What types of accommodations does a homeowners' association need to make for occupants with disabilities so that it is in compliance with the Fair Housing Act? Do I have to pay for any modifications to common areas?
• Are my homeowners' association's rules against resident children playing on a street that is within the community legal?

 

Source: Lawyers.com^sm