Fair Housing Act and Americans with Disabilities Act Considerations

A quick but vital disclaimer before we dive in: Nothing in this article constitutes legal advice. These observations reflect practical experience gained through work in community association management, consulting, and volunteer leadership. The Fair Housing Act and the Americans with Disabilities Act (ADA) are U.S. federal laws.

Because these laws, applicable accessibility requirements, and enforcement standards vary significantly by jurisdiction and circumstance, HOA boards should consult experienced legal counsel familiar with community association law in their jurisdiction regarding any specific legal issue or accommodation request.

In our experience, fair housing and accessibility issues are among the most sensitive situations a community association board can face. Many of the mistakes associations make are avoidable, yet the consequences of mishandling even a single request can become expensive and disruptive very quickly. Boards should involve qualified legal counsel early in the process, ideally before substantive communications or decisions occur.

Know Which Law Applies

One of the more common mistakes we see in HOA governance is treating the Fair Housing Act and the ADA as interchangeable. They are not. Boards that approach them as though they are the same law often end up focused on the wrong issue entirely.

How each law applies depends heavily on how a specific community is structured and used. This is where experienced legal counsel matters. Even where the ADA may not apply to a community or facility, the Fair Housing Act may still impose significant obligations relating to reasonable accommodations and modifications.

One issue worth paying attention to involves associations that sell memberships to non-residents, rent facilities to the public, or otherwise open amenities beyond the resident membership. In some situations, that type of use may increase the likelihood that portions of the property could be viewed as places of public accommodation under applicable law. That distinction can matter, sometimes significantly.

This is exactly the kind of analysis an attorney should handle, not a volunteer board trying to interpret federal law during a meeting discussion.

State and local laws create another layer of complexity. In both North Carolina and South Carolina, local requirements and enforcement standards may go beyond federal law. Most governing documents do not fully address these issues on their own, and boards should avoid relying on internet summaries or informal interpretations.

Let Counsel Lead the Early Conversation

When an accommodation request arrives, the natural instinct is to start gathering information immediately. That reaction is understandable. Acting on it without legal guidance is where many associations unintentionally create problems for themselves.

Questions about what information may appropriately be requested, how to request it, and when additional inquiry is justified should generally be answered with guidance from qualified legal counsel. In many situations, counsel should guide or participate directly in the early communications. Experienced attorneys can also help boards avoid unintentionally creating inconsistent standards or documentation practices that later become problematic during an investigation or dispute.

This is not about being adversarial. Quite the opposite. The attorney’s role is to advise the association on the law, proper process, help ensure that everyone’s rights are appropriately protected, and provide guidance as counsel otherwise believes is appropriate under the circumstances.

We have seen situations where a board believed it was simply asking reasonable follow-up questions, only to later discover that the tone or wording of early emails became the center of the dispute. In one association, the underlying issue itself was relatively manageable. What escalated the matter into a costly complaint was a rushed exchange between volunteers trying to “clarify” the request without legal guidance. The first few communications created far more exposure than the accommodation request itself.

Having counsel guide the process early helps ensure that everyone’s rights are respected and that the association remains on solid footing from the start.

Most accommodation requests arise from legitimate human circumstances. Boards should approach these conversations with professionalism, patience, respect, and close coordination with qualified legal counsel.

Procedures and Documentation Matter

Associations that navigate these situations successfully tend to share a few important habits. They slow down. They follow counsel’s guidance. They communicate carefully. They document everything.

A poorly worded email, an offhand remark during a meeting, inconsistent meeting minutes, or a hastily drafted response can seriously complicate the association’s position, even where the underlying decision may have been appropriate.

Before formally responding to any accommodation or modification request, boards should generally have counsel review both the process and the proposed response.

The financial stakes are real. Mishandling these matters can lead to administrative complaints, litigation, fines, damages, and substantial legal expense, even where the association ultimately prevails.

D&O insurance policies also vary significantly. Some policies may limit or exclude fair housing-related claims altogether. Boards should consult both legal counsel and their insurance professionals to better understand potential exposure and coverage limitations.

What Is a Reasonable Accommodation?

A reasonable accommodation generally refers to a change in rules, policies, practices, or procedures that may be necessary to allow a person with a disability equal opportunity to use and enjoy housing.

Whether a request is legally required depends heavily on the facts, the governing documents, applicable law, and the specific circumstances involved. That determination should be made with qualified legal guidance.

Questions HOA Boards Should Ask Legal Counsel Now

One of the more practical things a board can do is discuss these issues before a complaint or accommodation request arrives. Waiting until emotions are high and timelines are compressed usually makes the process more difficult.

Here are several topics worth discussing with qualified legal counsel:

Facility Use

Does the association’s use of common facilities, such as public rentals or non-resident memberships, affect how Fair Housing or ADA obligations may apply?

Rules and Governing Documents

Do existing rules, policies, or governing documents create unintended fair housing exposure?

The Intake Process

Does the association have a standard process for receiving and responding to accommodation requests, and has legal counsel reviewed it?

Point of Contact

Who on the board or management team should handle initial communications if a request arrives?

Insurance Coverage

Does the association’s D&O policy cover fair housing or discrimination claims, and where might coverage gaps exist?

These are not hypothetical concerns. In our experience with HOA management and community association management throughout the Carolinas, these are often the exact issues boards wish they had addressed before they needed answers.

Boards looking for additional governance resources can find educational material at www.amgworld.com, including insights from the Lessons from the Neighborhood series by Governance Strategist Paul Mengert.

Paul’s Key Guidance

Do not let urgency force the board into quick reactions on fair housing issues. Most of the real exposure comes from process mistakes, emotional communications, or volunteers trying to solve legal questions informally.

Slow the conversation down. Designate one point of contact. Keep communications professional and limited. Involve legal counsel early, especially before requesting information or issuing formal responses.

On paper, accommodation requests sometimes look straightforward. In practice, they rarely are. The boards that manage these situations best are usually the ones disciplined enough to avoid improvising.

About the Author

Paul Mengert is a premier educator and strategist with over 30 years of expertise in community association management. As CEO of Association Management Group (AMG), an AAMC®-accredited firm, he is a CAI Educator of the Year and a PCAM® designee dedicated to elevating professional and volunteer leadership.

A governance advisor and a decision maker strategist, Paul is a longtime guest lecturer at Wake Forest University School of Law and teaches in the Harvard Business School alumni program. His global influence includes advising the U.S. Department of State on housing initiatives in the former Soviet Union and chairing the Piedmont Triad International Airport Authority, earning him the “Most Admired CEO” title from the Triad Business Journal. Through his book series, Lessons from the Neighborhood, and his work at AMG, Paul provides community leaders with the essential framework to master the intersection of finance, law, and human dynamics.