Fair Housing Act
The United States Court of Appeals for the 11th Circuit recently entered a decision regarding the applicability of the federal Fair Housing Act to homeowner associations. (See Loren v. Sasser, 309 F.3d 1269 (11th Cir. 2002)). The homeowner in this case bought and moved into a home in a deed-restricted subdivision. The homeowner resided with her handicapped mother who suffered from chronic osteoarthritis, high blood pressure, and had two artificial knees that caused her difficulty in using stairs. The homeowner also lived with her step-aunt, who was severely mentally retarded, blind, and had a guide dog. The homeowner requested permission from the association to construct a four foot chain link fence in the front yard and to construct a deck and wheelchair ramp on the front of the house. Both requests were initially denied, but the association offered alternative plans for the deck, wheelchair ramp and fence to be constructed in conformity with the deed restrictions and other properties throughout the association, either on the side of the house or in the backyard. The homeowner rejected the alternative plans and subsequently sued the association under the theory that failure to allow the chain link fence and the wheelchair ramp constituted a violation of the Fair Housing Act. The trial court ruled in favor of the association and the appellate court affirmed the lower court's decision. The appellate court indicated that the association was required to make reasonable accommodations for handicapped persons, and it appeared such reasonable accommodations were made in this case. The court noted: "While a chain-link fence on the back or side yard of [the homeowner's] property may not be appellants' preference, it nevertheless would be a reasonable accommodation for the asserted needs of the handicapped appellants." (Id., at 1303). The court indicated the association did not show discrimination against the homeowner in violation of the Fair Housing Act because a reasonable accommodation was available in accordance with the deed restrictions of the subdivision.
The Arizona Court of Appeals has also recently addressed the Fair Housing Act as it applies to homeowner associations. (See Kanady v. Prescott Canyon Estates Homeowners Association, 60 P.3d 231 (Az. App. 2002)). In that case a potential homeowner entered into a purchase contract to buy a home located in an age restricted community. The parents entering into the contract were over age 55 as required by the deed restrictions, but they had a son who was severely developmentally disabled who was not over the age of 35 years. The deed restrictions required at least one person living in the household to be over age 55, and no resident could be under 35 years old. The court found that under the state and federal Fair Housing Acts, the association was required to make "reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." (Id., at 232-33). The court noted that housing for older persons is exempt from the familial status anti-discrimination provisions, but the exemption did not extend to discrimination against disabled persons. Under the facts of this particular case, the court held that the association could have made reasonable accommodations in allowing the disabled son to live with his parents without jeopardizing the community status as a "55 years of age or older" community. The court was clear to point out that reasonable accommodations vary depending on the facts of each case and what is reasonable in a particular circumstance is a fact-intensive, case-specific determination.
