Eleventh Circuit Holds HOA Rule Enforcement and Amenity Access Are “Terms, Conditions, or Privileges” Under FHA §3604(b): Post‑Acquisition Discrimination Claims Against Homeowners’ Associations Revived

Introduction

This commentary analyzes the Eleventh Circuit’s published opinion in Sara Watts v. Joggers Run Property Owners Association, Inc., No. 22-13763 (11th Cir. Apr. 7, 2025). The court reverses the district court’s Rule 12(b)(6) dismissal and clarifies a significant question at the intersection of fair housing and common-interest community governance: whether post-acquisition discrimination by a mandatory homeowners’/property owners’ association—through selective rule enforcement, restrictions on amenities, and harassment—falls within the scope of the Fair Housing Act (FHA), 42 U.S.C. § 3604(b), and whether such conduct can also support claims under 42 U.S.C. §§ 3617, 1981, and 1982.

The plaintiff, an African American homeowner and former HOA board member, alleged a pattern of racially discriminatory conduct, including the use of racial slurs by board leadership, selective enforcement of parking and pet rules, inconsistent penalties and “mysterious fees,” closure and restriction of access to a community basketball court following complaints about Black youth, disparate treatment regarding yard sales, and harassment of an African American guest. The district court dismissed, holding that § 3604(b) does not reach post-acquisition conduct and that the civil rights claims were insufficiently pled. The Eleventh Circuit disagreed on all fronts and remanded.

Summary of the Opinion

• FHA § 3604(b) covers post-acquisition discrimination tied to the “terms, conditions, or privileges” of owning a dwelling, including HOA-provided “services or facilities” directly connected to the sale of a home in a mandatory association community. The panel held that HOA rule enforcement and access to amenities (e.g., basketball courts, parking) are within § 3604(b)’s ambit.
• FHA § 3617 interference claims are viable where the plaintiff plausibly alleges interference with rights protected by § 3604; because § 3604(b) was plausibly pled, § 3617 survives.
• Section 1981 claims were adequately alleged: the HOA membership rules constituted a contract, and the complaint plausibly alleged intentional racial discrimination causing injury to contractual benefits and conditions.
• Section 1982 claims were adequately alleged: the HOA’s discriminatory conduct plausibly impaired the plaintiff’s right to use property on equal terms with white residents, not merely the right to buy or sell.
• Pleading and procedure: The court accepted as true the detailed factual allegations and took judicial notice of publicly available HOA governing documents referenced in the complaint, rejecting the notion that the plaintiff must plead “chapter-and-verse” contractual provisions at the motion-to-dismiss stage.
• A concurring opinion agreed on § 3604(b)’s plausibility but found it unnecessary to discuss HUD’s implementing regulation given the statutory text and case law.

Detailed Analysis

Precedents Cited and Their Influence

• Georgia State Conference of the NAACP v. City of LaGrange, 940 F.3d 627 (11th Cir. 2019): A cornerstone of the court’s analysis. LaGrange held § 3604(b) reaches post-acquisition conduct and applies to “services or facilities” directly connected to housing (municipal utilities). The court borrowed LaGrange’s two-step logic:
  • Are the services directly connected to the sale or rental of a dwelling?
  • Are the services essential or fundamental to habitability and residence in the dwelling/community?
  The panel analogized HOA membership in a mandatory association to utility access, concluding that rule-governed amenities and rights are “part-and-parcel” of ownership in a planned community.
• Hunt v. Aimco Properties, L.P., 814 F.3d 1213 (11th Cir. 2016): Addressed § 3604(f)(2) (disability discrimination) but uses nearly identical language to § 3604(b). Hunt confirmed that restricting access to shared facilities and placing special conditions on a protected person states a viable claim, supporting the analogous application to racial discrimination here.
• Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009) (en banc): Condo association’s enforcement of facially neutral rules (ban on religious symbols) could violate § 3604(b). Crucially emphasized the “contractual connection” between association rules and the ownership bundle—a key insight the Eleventh Circuit adopts in the HOA context.
• Curto v. A Country Place Condominium Association, 921 F.3d 405 (3d Cir. 2019): Sex-segregated pool schedules in a condo association violated § 3604(b) because a communal pool is a “facility associated with a dwelling.” This case supports treating HOA amenities as covered “facilities.”
• Sofarelli v. Pinellas County, 931 F.2d 718 (11th Cir. 1991): Recognized § 3617 interference where actors impeded § 3604 rights. With § 3604(b) plausibly pled, § 3617 plausibly follows.
• Evans v. Tubbe, 657 F.2d 661 (5th Cir. Unit A 1981): Pre-Bonner Fifth Circuit case binding in the Eleventh Circuit; recognized that the FHA prohibits not only direct discrimination but also practices with racially discouraging effects. Supports § 3617 viability based on harassment and intimidation affecting the use of property.
• Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006); 42 U.S.C. § 1981(b): § 1981 covers post-formation contract conduct; a plaintiff must identify a contractual relationship and racial discrimination causing contractual injury. The court applied this framework to HOA membership contracts.
• Ziyadat v. Diamondrock Hospitality Co., 3 F.4th 1291 (11th Cir. 2021): Clarifies pleading a § 1981 claim can focus on the contractual injury within an existing contractual relationship; specific clause citation is not essential at the motion-to-dismiss stage.
• City of Memphis v. Greene, 451 U.S. 100 (1981): § 1982 protects the right to use property on equal terms with white citizens, not just acquisition or transfer. The Eleventh Circuit invoked this broad construction to encompass HOA-controlled benefits and access.
• Tillman v. Wheaton-Haven Recreation Ass’n, 410 U.S. 431 (1973): Where membership benefits are linked to residency, those benefits are infused into the property rights a buyer acquires. Denying access based on race violates § 1982. This resonates with HOA/condo membership-based amenities.
• United States v. Brown, 49 F.3d 1162 (6th Cir. 1995); Woods-Drake v. Lundy, 667 F.2d 1198 (5th Cir. 1982): The “use” of property is a § 1982-protected right; cases included wrongful denial of access and evictions aimed at preventing association with Black guests.
• Textual and interpretive sources: Kasten v. Saint-Gobain (statutory interpretation), United Mine Workers v. Toffel (contextual reading), Black’s Law Dictionary (1968) definitions of “terms,” “conditions,” and “privileges,” and Restatement (First) of Property § 10 (ownership bundle). These helped ground the analysis that HOA rules, benefits, and access fall within § 3604(b)’s “terms, conditions, or privileges.”
• HUD regulation, 24 C.F.R. § 100.65(b)(4): Defines discrimination “relating to the sale or rental of a dwelling” to include limiting use of privileges, services, or facilities associated with a dwelling because of a protected characteristic. The panel treated it as an “especially useful” interpretive aid, consistent with post-Loper Bright practice of giving weight to long-standing agency interpretations while independently construing the statute.

Statutory Text and Legal Reasoning

The panel began with § 3604(b)’s text: it is unlawful “to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith” because of a protected characteristic. Although the statute does not enumerate the “terms, conditions, or privileges,” the court applied common-usage definitions and read the phrase in the context of housing contracts in planned communities.

Key reasoning steps:

• Mandatory HOA membership is part of the sale’s “terms, conditions, or privileges”: In communities like Joggers Run, membership and compliance with HOA rules are a condition of purchase; the rights and benefits (e.g., amenity access, parking rules, participation in governance) flow from this contractual relationship and attach to ownership.
• “Services or facilities in connection therewith” includes HOA amenities and rules: Using LaGrange’s framework, HOA-provided rights and communal facilities are “directly connected” to housing and fundamental to residency in a planned community, even if not as existential as utilities. They are “part-and-parcel” of homeownership in such communities.
• Consistency with HUD and sister circuits: HUD’s regulation, Bloch (7th Cir.), and Curto (3d Cir.) all support treating association rule enforcement and shared amenities as covered “privileges, services, or facilities” associated with a dwelling.
• Not a mere “neighbor quarrel”: The “contractual connection” between owner and association distinguishes ordinary disputes among neighbors from discriminatory rule enforcement or amenity restrictions imposed by the association that are encompassed by § 3604(b).

Application to Each Claim

1) FHA § 3604(b): Terms, conditions, or privileges; services or facilities

Accepting the complaint’s allegations, the HOA disparately enforced parking rules (e.g., towing the son’s car without required warnings, auctioning it despite COVID-related DMV delays, while a white board member violated parking rules without sanction), restricted access to the basketball court following complaints about “too many Black kids,” harassed and penalized the plaintiff (including a citation for “being un-neighborly”), tolerated prohibited pets for white neighbors while pressuring the plaintiff to relinquish her service dog, and inconsistently enforced yard-sale and maintenance-related fees. The HOA president allegedly used racial slurs (“monkeys”), a board member used a racially charged phrase (“Bye, Felicia”), and the plaintiff’s Black guest was accused of trespass and vandalism.

These allegations plausibly describe discriminatory treatment affecting the HOA-conferred benefits and shared facilities integral to ownership in the community, falling within § 3604(b). The court emphasized that the claim concerns the association’s control over community privileges and services that were “directly connected” to the plaintiff’s purchase and membership obligations.

2) FHA § 3617: Interference, coercion, intimidation

Section 3617 makes it unlawful to “coerce, intimidate, threaten, or interfere” with any person in the exercise or enjoyment of rights granted or protected by §§ 3603–3606. Because the plaintiff plausibly alleged a § 3604(b) violation, the § 3617 interference claim was also plausibly pled. The harassment, intimidation, and exclusion alleged—including removal from a board meeting by police and other actions that deterred use of facilities—fit paradigmatic § 3617 interference.

3) Civil Rights Act § 1981: Equal right to make and enforce contracts

Section 1981 protects the right to “make and enforce contracts,” expressly including enjoyment of “all benefits, privileges, terms, and conditions of the contractual relationship.” A § 1981 claim requires intentional racial discrimination causing contractual injury. The panel held that the HOA’s governing documents form a contract; the plaintiff alleged intentional racial discrimination (including explicit slurs by leadership, different rule enforcement against Black residents and guests, unequal access to amenities), causing injury to her rights under the contract (loss of access, penalties, and eventual forced sale). At the pleading stage, she was not required to cite exact provisions; it sufficed to identify the contractual relationship and allege discriminatory interference with its benefits and conditions.

4) Civil Rights Act § 1982: Equal right to use property

Section 1982 guarantees the same right as white citizens “to inherit, purchase, lease, sell, hold, and convey real and personal property.” The Supreme Court has long read § 1982 to protect not only acquisition and conveyance but also the right to use property on an equal basis. Because HOA membership benefits are “infused” into the ownership bundle (Tillman), discriminatory denial or diminution of access to amenities and equal enjoyment of common areas plausibly states a § 1982 claim. The panel rejected the district court’s narrow view that the plaintiff’s ability to purchase and sell ended the analysis; the allegations described a dual system of property use favoring white owners, which § 1982 forbids.

5) Pleading standards and judicial notice

• Plausibility: The court applied Twombly/Iqbal. FHA claims often cannot mirror a prima facie evidentiary case at pleading, so allegations are judged against statutory elements, not against rigid burden-shifting frameworks pre-discovery.
• Judicial notice of HOA rules: Because Florida law requires large associations to publish governing documents and the complaint repeatedly referenced them, the court took judicial notice of the HOA’s rules and bylaws. It rejected the HOA’s argument that the complaint was deficient for not pleading “chapter-and-verse,” noting the HOA could have attached the rules if it believed the plaintiff had misrepresented them. This is an important procedural signal: plaintiffs need not attach every contractual term when the governing documents are public, central, and undisputed.

The Concurrence

Judge Jordan concurred in the § 3604(b) result without relying on HUD’s regulation. He emphasized that the statute’s plain language, coupled with Eleventh Circuit and sister-circuit precedent, and the mandatory nature of the association suffice to establish the claim’s “substantive plausibility.” He cited Curto and a district court decision, Savanna Club Worship Services, underscoring that in planned communities, discriminatory deprivation of the rights tied to membership in common areas is actionable under the FHA.

This concurrence is instructive post-Loper Bright: courts can and should resolve § 3604(b) issues through text and precedent; HUD’s long-standing interpretation remains supportive but not essential.

Complex Concepts Simplified

• Post-acquisition discrimination: Unlawful discrimination that occurs after you already own or rent the property. The Eleventh Circuit confirms § 3604(b) covers such conduct when tied to the ongoing “terms, conditions, or privileges” of housing.
• “Terms, conditions, or privileges”: The bundle of benefits, obligations, and advantages that attach to the housing relationship—here, HOA membership rights (amenities, parking rights, participation in governance) that come with ownership.
• “Services or facilities in connection therewith”: Services and shared spaces provided as part of the housing arrangement (e.g., basketball courts, parking areas, community rooms), not limited to utilities.
• Section 3617 interference: Prohibits coercion, threats, intimidation, or interference with the exercise of FHA rights, including harassment that deters equal use and enjoyment.
• Section 1981 (contracts) vs. Section 1982 (property use):
  • § 1981 protects equal contractual rights and enjoyment of contractual benefits post-formation.
  • § 1982 protects equal rights to acquire and use property; it reaches discriminatory practices that diminish how you can use your home and related community benefits compared to white citizens.
• Pleading standard (Twombly/Iqbal): A complaint must allege enough facts to make relief plausible, not merely possible; detailed contractual citations are not necessary when the relationship and discriminatory interference are adequately alleged.
• Judicial notice at 12(b)(6): Courts may consider public, undisputed documents central to the claims (like published HOA rules) to assess plausibility without converting to summary judgment.

Practical Implications and Impact

• For HOAs/Condos in the Eleventh Circuit (FL, GA, AL):
  • Discriminatory enforcement of rules, selective access to amenities, disparate penalties/fees, and harassing conduct tied to protected characteristics can support FHA § 3604(b) and § 3617 claims, as well as § 1981 and § 1982 claims.
  • Policies or practices triggered by who uses amenities (e.g., complaints about “too many Black kids”) are legally perilous. Closing or restricting facilities in response to racially charged complaints can be evidence of discrimination.
  • Board member speech matters. Racial slurs or coded language by leadership can serve as direct evidence of discriminatory intent and fuel federal claims.
  • Uniform application of rules is essential. Document legitimate, non-discriminatory reasons for enforcement; follow notice and warning procedures to the letter; avoid discretionary enforcement that tracks race or other protected characteristics.
• For homeowners/residents:
  • Allegations of racial slurs, comparator examples (how similarly situated white residents were treated), timelines of selective enforcement, and amenity restrictions provide strong factual matter for plausibility.
  • You need not attach all governing documents to a complaint when they are publicly available and central. Courts may take judicial notice.
  • Claims can be framed under the FHA (terms/privileges; interference) and the Civil Rights Act (§ 1981 for contracts; § 1982 for property use), allowing broader remedies and overlapping legal theories.
• For litigators:
  • Post-acquisition claims are alive and well under § 3604(b) in the Eleventh Circuit beyond utilities (LaGrange), now expressly including HOA-controlled amenities and rights.
  • Use HUD’s § 100.65(b)(4) as persuasive confirmation that limiting access to facilities/privileges is actionable, while anchoring arguments in statutory text and circuit precedent to anticipate post-Loper Bright skepticism of agency gloss.
  • Plead concrete comparators and facts indicating intent or disparate treatment; contemporaneous racist statements by decisionmakers can be powerful.
  • Expect courts to accept judicial notice of governing documents referenced in the complaint; defendants who think plaintiffs misstate rules should attach the actual documents rather than rely on technical pleading attacks.
• Doctrinal impact:
  • Strengthens the FHA’s reach into common-interest community governance, aligning the Eleventh Circuit with the Third and Seventh Circuits on association rule enforcement and amenity access.
  • Clarifies that § 1981 claims can arise from HOA membership contracts and § 1982 claims from impairments to the equal use of property, not just acquisition.
  • Signals a post-Loper Bright approach: continued reliance on long-standing agency interpretations as persuasive aids, but adjudicating meaning through statutory text, context, and precedent.

Conclusion

Watts v. Joggers Run establishes an important Eleventh Circuit precedent: in a mandatory common-interest community, the association’s control over amenities, access, and rule enforcement is a “term, condition, or privilege” of ownership and a “service or facility in connection” with that ownership under FHA § 3604(b). Post-acquisition discrimination in this domain is actionable. Because the plaintiff plausibly alleged racially motivated disparate enforcement, amenity restrictions, and harassment, her § 3604(b) claim—and, consequently, her § 3617 interference claim—survive dismissal. The court also reinstated her § 1981 and § 1982 claims, recognizing HOA membership as a contractual relationship and reaffirming that § 1982 protects equal use, not merely acquisition or sale.

Beyond correcting a too-narrow district court reading of federal civil rights laws, the opinion provides a clear compliance roadmap for associations and a pleading roadmap for homeowners. It situates HOA governance firmly within the FHA’s broad remedial framework, ensures that common facilities and privileges cannot be rationed by race, and underscores that discriminatory rule enforcement is not merely a private quarrel—it is a federal civil rights problem.