Oregon HOA's and Condo Associations Need to Omit Discriminatory Language in Governing Documents
The Oregon Legislature adopted a bill in 2021 to ensure planned communities eliminate discriminatory language from their governing documents by the end of this year. House Bill 2534, which amends Oregon Revised Statutes (ORS) chapters 94 and 100, imposes a responsibility on homeowners associations and condominium associations to review their governing documents and remove certain discriminatory language.
Specifically, the associations must review their governing documents for discriminatory language and either (1) amend the documents to remove the prohibited language, or (2) certify that the documents do not contain any such discriminatory language. These requirements must be met prior to December 31, 2022.
The prohibited discriminatory language includes any restrictions based on “race, color, religion, sex, sexual orientation, national origin, marital status, familial status, source of income, disability or the number of individuals ... occupying a dwelling.” Age is not a protected group; therefore, House Bill 2534 does not apply if a community’s documents contain restrictions based on age, such as for certain retirement or age 55+ communities.
HB 2534 stems from principles of the Federal Fair Housing Act (FFHA) of 1968, which prohibits discrimination in the “sale, rental, and financing of dwellings” based on “race, color, national origin, religion, sex, familial status, or physical or mental disability.” The FFHA prohibits homeowners associations and condominium associations from discriminating against people in the “provision of services and facilities of a rental or dwelling.” In Oregon, sexual orientation, marital status, and source of income are also protected groups, as codified by ORS 659A.421.
Oregon Legislators deemed the new bill necessary because, previously, the governing documents of an association could contain language that would put it at risk of violating the Federal Fair Housing Act, “such as when bylaws stipulate the use of facilities or the modification of a public living space, such as placing a religious symbol in a shared hallway.” House Bill 2534 adds a layer of guidance and protection to homeowners associations and condominium associations by explicitly prohibiting discriminatory language in governing documents.
To comply with HB 2534 and the resulting changes to ORS chapters 94 and 100, associations must remove language that would “restrict the use of the community … because of race, color, religion, sex, sexual orientation, national origin, marital status, familial status, source of income, disability or the number of individuals, including family members, persons of close affinity or unrelated persons, who are simultaneously occupying a dwelling unit” in any recorded instrument governing the community.
Before December 31, 2022, associations need to review each of their governing documents, such as articles of incorporation, bylaws, and declarations of covenants, conditions, and restrictions (CC&Rs), to ensure they are free from discriminatory language.
Each association must take one of the following actions, depending on what the association discovers in its governing documents:
- If any language in a governing document reflects a restriction based on the protected groups listed above, the document must be amended and replaced to remove the restrictions. Amending the document to remove discriminatory language does not require approval by the homeowners or board members. Instead, the new document should include a certification signed by the association’s president and secretary clarifying that the amendment only changes the document to the extent HB 2534 requires.
- If the governing documents do not contain any discriminatory restrictions, and are therefore in compliance with HB 2534, the association must create and record a statement verifying that the association has reviewed its governing documents and that the documents do not contain any restriction or rule against the use of the community by a protected group.
Prompt review of governing documents by homeowners associations and condominium associations will facilitate their completion of the required changes or verification prior to December 31, 2022.
This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.