In a recent case (City of Edmonds v. Oxford House, Inc.) the United State Supreme Court, interpreting the Federal Fair Housing Amendments Act of 1988 (FHAA) with respect to a zoning ordinance, has laid down a rule which will impact a substantial number of condominiums.  The focus of this case was the definition of a family within the subject town’s zoning ordinance. As is fairly common, the code defined family as “no more than five unrelated individuals”.  This unfortunately, the Court struck down on the basis that it violated the provision of the FHAA which prohibits discrimination in housing based upon familial status.

            The majority of us in the Community Association industry have focused our attention on the effect that the familial status provisions had on retirement communities. Interestingly, however, the vast majority of reported cases under the FHAA have dealt with zoning ordinances and other municipal restrictions as they impact various types of group homes and other nontraditional living arrangements. Likely this results from the fact that the forces backing group homes had resources sufficient to wage those legal battles.  Thus, it is not surprising that one such case reached the United States Supreme Court.

            The holding in that case was relatively simple.  A law which most of us believed was intended to protect families also protected nontraditional families.  The Court ruled that the prohibitation against discrimination in housing based on familial status cut both ways. Not only could there be no discrimination against a traditional family, but there can be no discrimintation based on family status, in any respect.  Therefore, a zoning ordinance which arbitrarily defined a family as no more than four unrelated individuals violated the FHAA.

            What then is the concern for associations you ask? Well, a vast number of documents restrict occupancy to a single family or no more than two, three or four unrelated persons. Under this case, such a provision is illegal. Fortunately, there is a way to deal with this result.  The Court recognized that a numeric restriction based on such things as health reasons or overloading utility systems, etc., would pass muster.  HUD (the Department Housing and Urban Development) has in at least jurisdiction indicated that a two person per bedroom limit will be presumed to be valid.            Therefore, what associations now need to do is to review their documents and, if there is no numeric limitation on occupancy,  have an amendment prepared for unit owner approval.

            Unfortunately, this can only be accomplished by a master deed  amendment  as you will be placing a use restriction on units.  This cannot be done by board rule. However, where the purpose is to maintain the character of the complex, passage of such an amendment should not be an impossible task.