The More the Merrier?

The More the Merrier?

Why Your Community’s Hands May Be Tied When It Comes To The FHA

By Kaylee Tuck, Esquire / Published December 2018

Photo by iStockphoto.com/ Diy13

Every year, HOAs spend countless hours reviewing, enforcing, and, perhaps, amending their restrictions, bylaws, and rules and regulations. The time is spent to create a well-established and controlled community that meets the expectations of homeowners paying association dues, but exactly how much control do associations actually have over the make-up of their communities?

Group Homes

     More than once, the firm has been asked by a residential HOA whether the association must accommodate a group home, despite restrictions in the declaration requiring single-family residential use. The answer is, “sometimes.” The issue is governed by a combination of federal, state, and case law.

     The most common examples the firm has seen are when group homes that are specifically tailored to children or developmentally-disabled adults enter a community and are believed by neighbors to cause a number of issues ranging from increased noise, parking, and traffic concerns to destruction of property and abuse of common areas. Complaining homeowners ask the board to enforce the restrictive covenants of the community. The restrictive covenants the homeowners point to are usually along the lines of enforcing the prohibition of business activity within the residence, occupancy requirements, or requirements that residences are to be used exclusively for noncommercial, single-family use. While these may seem like elementary challenges resulting in “easy wins” in the eyes of neighboring homeowners, the law, invariably, makes it a bit more complicated.

Florida Law

     Under Florida law, group homes of six or fewer residents that otherwise meet the definition of a community residential home (that is, homes which are licensed to serve residents who are clients of various agencies, such as the Agency for Persons with Disabilities or the Department of Children and Families) are considered single-family units and a noncommercial, residential use. Therefore, group homes of six or fewer residents are not required to seek approval from the local government if they want to locate to a community that the local government has zoned for single-family or multifamily use.

     The same goes for HOAs and communities governed by restrictive covenants, where Florida courts have ruled that failure to accommodate a group home of six or fewer residents is a violation of both the Florida and Federal Fair Housing Act. The State and Federal FHA provide for three ways to discriminate against protected classes: (1) intentional discrimination, (2) incidental discrimination, and (3) failure to make a reasonable accommodation.

     Courts have ruled that attempting to enforce a restrictive covenant to oust a particular group home is intentional discrimination and is a direct violation of the FHA because the community would be attempting to eject the group home from the neighborhood based on the people living in the group home.

     Enforcing restrictive covenants against all group homes in general results in incidental discrimination. The rationale is that such restrictions are being enforced differently against a licensed group home because it may be considered a business or occupational use of the residence, whereas similarly situated adults who agree to share the cost of the residence would not have any issues. This reduces the availability of residences for FHA protected classes and goes directly against the public policy of the FHA, which is to ensure that community-based residential options are more widely available.

     Additionally, a failure to waive restrictions for group homes of six or fewer residents results in a failure to make a reasonable accommodation under the FHA. What qualifies as a “reasonable accommodation” depends on the facts of the situation, but Florida courts have specifically ruled that a group home of six or fewer residents is the functional equivalent of a single-family home, and a failure to waive the restrictions that would otherwise prevent that group home from residing in the community is deemed a refusal to provide a reasonable accommodation, resulting in discrimination under the FHA.

     While there is not a lot of guidance about a community’s obligations regarding group homes of seven or more residents, associations are encouraged to tread lightly when it comes to group homes of six or fewer residences, as the law is well-established that failure to accommodate the group home is a violation of the State and Federal FHA.

So, What Now?

     Reading this, it may sound like the association just can’t win. While there are few remedies available to associations who want to be proactive, the more effective approach for the association is to be strategically reactive.

     In terms of being proactive, the association is free to impose a reasonable requirement for adequate supervision in group homes for children without violating the familial status provisions of the FHA. These provisions are usually not difficult to implement as most associations already have age restrictions and supervision requirements for certain common areas. However, it is always better to consult the association’s attorney when trying to implement these reasonable requirements as there may be specific language that must be used, updates in the law, or unforeseen circumstances that must be considered.

     In terms of being reactive, an association’s most powerful tool is a good filing system. Neighboring homeowners often are not concerned with the presence of a group home, as the home really does not change the fundamental character of a neighborhood, unless the residents of a group home start causing issues. In particular, one of the more common scenarios is when the residents of a group home for children become rowdy or destructive to the point that police are called. In these cases, the association is encouraged to keep adequate records of the situation, including police reports of individual incidents. Licensed group homes are usually well-regulated, and issues that result in significant and continuous disturbances could be a sign that the group home is being operated inappropriately. These potential issues should be brought to the attention of the licensing agency and will be well-received if the concerns are supported with adequate documentation. The association may also enforce restriction and rule violations in the same manner as it would any other homeowner.

     While this article should serve to provide some general guidance, associations should always be advised to contact the association’s attorney when trying to tackle these issues. Concerns involving enforcement of declarations and restrictive covenants are almost always multi-faceted, and your attorney will be able to provide advice and guidance tailored specifically to the unique concerns of your association and community.

Kaylee Tuck

Associate with Henderson, Franklin, Starnes & Holt P.A.

Kaylee Tuck is an associate with Henderson, Franklin, Starnes & Holt P.A. in the Real Estate and Land Use & Environmental Law departments in the firm’s Fort Myers office. She focuses her practice in commercial and residential sales and leases, development, land use, and survey matters. Kaylee may be reached at (239) 344-1164 or by email at email hidden; JavaScript is required.