- When homeowners associations were first created, they helped keep Black people out of the neighborhood. They're still doing it today.
For too many Americans, the dream of owning a home has been stymied by a homeowners association. Owning real estate is one of the best ways to build wealth and pass that wealth on to the next generation, but for decades, Black Americans have been excluded from buying in certain neighborhoods.
Jonathan Rothwell, author of "A Republic of Equals," told Business Insider, "There is plenty of evidence from historic records and housing policy discussions that anti-Black racism motivated some of the strategies used by homeowner associations, such as deed restrictions and covenants that explicitly discriminated against Black people by compelling other owners to avoid selling to them. HOAs perpetuate racial and economic segregation by blocking fair participation in housing markets, thus denying wealth-generating opportunities and upward mobility for many Black people and lower-income families."
- DISCRIMINATION: AN OVERVIEW OF THE FEDERAL FAIR HOUSING ACT AND A STUDY OF DISCRIMINATION CLAIMS FILED AGAINST ASSOCIATIONS.
At one point or another many associations have had discrimination charges filed, or threatened to be filed, against them for violations of either the Fair Housing Act or their state-specific anti-discriminatory laws. In some cases, the discrimination is obvious. For example, an association that refuses people of a particular religious faith to use the community amenities is clearly discriminating based on religion. Or, an association that enforces a restriction that prohibits residents of a particular race from living in the association would be discriminating based on race.
But more often than not discrimination by a homeowners association occurs in a more subtle form – not by direct discrimination but by enforcing a rule, restriction, or practice that has the effect of discriminating against one of the protected categories. Boards are often surprised when faced with a discrimination complaint, as they can clearly show that they’ve acted according to the strict letter of the governing documents. But associations are sued, and liability is sometimes found, just for that very reason: as a direct result of the association strictly enforcing the terms of its governing documents.
The consequences of discrimination, whether the board is aware it is discriminating or not, can be severe. Therefore, it is very important for an association to be able to identify and understand the ways an association can discriminate, so it can take proactive steps to prevent such claims from happening.
- HOA Liability for Discriminatory Harassment: A Primer.
Title VIII of the Civil Rights of 1968, also known as the Fair Housing Act (“FHA”), is a federal law which prohibits discrimination in housing and housing-related services due to race, color, religion, sex, national origin, disability, and familial status. Because the FHA applies to entities that set terms and conditions for housing and provide services and facilities in connection with housing, it applies to HOAs and other community associations. By now, most HOAs across the country are already aware (or should be aware) that, in 2016, the U.S. Department of Housing and Urban Development (“HUD”) amended its federal housing regulations to firmly establish association liability for discriminatory conduct by its Board, directors, employees, and even by residents. Particularly concerning to HOAs are the new regulations regarding discriminatory harassment and third-party liability, which may also be the most difficult sections to understand for Board members and management.
