By Curtis G. Kimble.
The U.S. Department of Housing and Urban Development (HUD) announced recently that it is charging a Florida homeowners association (HOA) and its management company with violating the Fair Housing Act by telling a family of eight that they had too many people living in their townhouse and threatening to evict them if they didn’t reduce the number of occupants based on an occupancy policy that permitted only six people to live in a four-bedroom home.
The federal Fair Housing Act makes it unlawful to deny housing or impose different rental terms and conditions based on disability, race, national origin, color, religion, sex, or familial status. Overly restrictive occupancy policies may unlawfully discriminate against families with children by preventing them from living in a home.
“Homeowners associations and management companies have an obligation to ensure that their occupancy standards do not violate the Fair Housing Act,” said John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity. “HUD is committed to taking action against anyone who unlawfully denies housing to families because of the number of children in the family.”
If a federal judge finds discrimination did occur, the homeowners association and the management company could face up to $16,000 in fines plus damages.
This issue frequently arises as a result of the enforcement by an association of a requirement in the CC&Rs that a unit or lot be occupied by a “single family.” If the definition of “single family” is too restrictive or narrow, the association could be faced with a discrimination claim and hefty fines from HUD or from the Utah Anti-discrimination and Labor Division.
HUD will look at and often defer to a local ordinance for permissible restriction on occupancy. In the case above, the county permits up to eleven occupants in the townhome. So, the Association was not able to point to that ordinance as a defense. HUD also looks at the size of the unit and number of bedrooms to determine if an occupancy restriction is discriminatory. In this case, the Association only allowed one and a half people per bedroom. At least two people per bedroom should be allowed generally (although other factors are relevant, as well).
Pay to Play, Literally?
In a separate matter, HUD charged a Massachusetts condominium association and property management company with discriminating against families with children. HUD accused them of unlawfully charging fees to parents for allowing their children to play in the common area.
The families were informed by the Association that they were being fined $10 a day for two days for children playing in the common area, $10 a day for two days for allegedly causing damage, $25 to reimburse for the damage and $437.50 for attorney fees. Prior to this, the families had not received any fines or warning, and when an adult resident was having a party on the common grounds, no fine was issued.
It’s illegal to impose different rules and restrictions on families with children, unless they are directly related to issues of safety or health, but even then, caution must be exercised. Always consult a qualified attorney when adopting or enforcing restrictions that may trigger a discrimination issue.
Utah HOA Law Blog 