Violations of the United States Fair Housing Act (FHA) can result in severe penalties for associations. Knowing how to govern your community responsibly in this regard is highly important. What is a common sense approach to staying in compliance with the FHA?
There are generally two subsets to the FHA and community associations: age-restricted, adult communities and residents with disabilities. Age-restricted communities, also known as adult communities, are ex- empt from part of the FHA, as they are allowed to discriminate towards residents based on age and sometimes familial status. These communities, though, must keep certain records in order to preserve this exemption.
The second subset is in relation to disabled people or people who claim to be disabled. When an owner or resident with a disability requests an accommodation (a modification of the rules) he or she feels is necessary to facilitate his or her use of the property, the most proactive approach the association could take would be to seek legal counsel. An association should never say “no” to a request until it’s absolutely necessary and appropriate.
Regardless, Greenstein advised, it’s best for associations to try to treat everyone the same, or accordingly under similar circumstances. Doing so limits the possibility of discrimination.
What are some problems with, pitfalls of and penalties for non-compliance with the FHA? According to Greenstein, the act provides for the recovery of legal fees and penalties, which means an association needs to be very careful and completely certain that it is making the correct deci- sion before it denies any request. Even if it hasn’t denied a request, it is also important for an association to address a request in a timely manner. Prolonging action on a request could be just as bad as denying it. Many associations also fall into the pitfall of discrimination through seemingly harmless regulations, he noted, such as pool restrictions, wherein they may be discriminating against a protected class without even realizing it.
Associations need to be very careful and certain when denying these kinds of requests. If an association is found to have unreasonably denied a request or discriminated against someone, they will be responsible for not only damages but the attorney’s fees and costs of the injured party as well. Because of this, penalties for violating the FHA are substantial.
The Department of Housing and Urban Development (HUD) is responsible for enforcing the aspects of the FHA related to associations. Each state has its own enforcement mechanism as well. A resident who believes their association has committed a violation could file a charge with either their state mechanism or the HUD, Greenstein advised. If dis- crimination is found, they will proceed with a lawsuit against the association on behalf of the resident. If not, the resident may still file a lawsuit against the association on their own.
What are some civil rights, and how do they apply to associations? The FHA makes it illegal for an association to discriminate in certain fashions in the provision of services. Some prohibited discriminatory bases include, but are not limited to, race, creed, religion, color, national origin, age, ancestry, nationality, marital/domestic partnership/ civil union status, sex, gender identity, sexual orientation, disability and familial status.
Could FHA violations be considered civil violations or criminal penalties? According to Greenstein, FHA violations are almost always considered civil violations, not criminal. In very rare situations, FHA violations could also be criminal violations if they violate the civil rights amendments or otherwise violate a federal criminal statute.
What constitutes problematic wording in a covenant or rule made up by the association? A rule made by an association may prove problematic if it contains anything that differentiates between residents based on one of the protected classifications, Greenstein explained.
In and of itself, an act of discrimination is not necessarily illegal. People discriminate all the time; for example, we discriminate when we purchase one type of car over another or hire one person instead of another. It is only when it is directed at a protected class that is becomes problematic. A clear example of such a violation would be a rule that prohibits children from riding the elevator. Furthermore, Greenstein noted, an association could be held responsible if it does not address discrimination between residents if it becomes aware of the issue.
As stated earlier, protected classes may include race, creed, religion, color, national origin, age, ancestry, nationality, marital/domestic partner- ship/civil union status, sex, gender identity, sexual orientation, disability and familial status.
What is discrimination based on protected classes? According to Greenstein, illegal discrimination would be an association’s actions that discriminate on the basis of one of the identified classes. For example, an association can regulate a lounge in regard to use, but not in regard to the type of person using it. He explained that a rule that prohibits families with children from using the lounge would be illegal discrimination based on age and familial status. Essentially, whenever a decision or rule by the board singles out or unfairly burdens a protected class, that board has discriminated based on a protected class.
What are considered reasonable accommodations for people with disabilities? For example, one would think it reasonable for a wheelchair-bound resident to request the addition of a ramp to one of the common area buildings. However, Greenstein explained, if an engineer determines that the desired ramp would not be safe or feasible, that same request might not be reasonable. Otherwise, associations are required to give dis- abled residents reasonable accommodations that are necessary to afford them equal use and enjoyment of their home and the services provided by the association, especially if it does not impose an undue burden on the association.
According to Greenstein, religion is absolutely a potential legal con- cern in the area of civil rights. For example, an association may ban residents displaying anything in a common element hallway, while someone’s religion may require a religious display in such a location, like a mezuzah.
How are religious displays treated in the FHA? They are treated the same way as any other matter related to reasonable accommodations. If the association allows a display for one religion, Greenstein noted, they must then allow similar displays for others so as not to discriminate. Banning all religious displays, though, may prove problematic, since residents could present that as a violation of the FHA. Furthermore, such a restriction may even be seen as a violation of free speech.
Can associations prohibit religious services in common areas? The association would have to decide if that regulation is reasonable under the circumstances. “Common areas are used by residents all the time. When it comes to regulating such a thing, the association should focus more on the time, place and manner of assembly, not the type,” Greenstein said. Associations should ideally avoid becoming involved in issues of religion, if at all possible.
Can an association place any restrictions against sex offenders? Sex offenders and felons are not listed as protected classes by the FHA, Greenstein noted, so an association may be able to discriminate against them. However, the HUD has stated that if restricting them appears to have an impact on an actual protected class, such as race, then the association could potentially be found liable of discrimination.
Can an association prevent a sex offender from renting a unit? Greenstein said that individual owners decide how they handle their private homes, including to whom they rent. It is feasible, then, for those owners to choose to not rent to sex offenders, without the association being held liable for such a discrimination.
But, according to Greenstein, it is very difficult otherwise for an association to regulate who is allowed to rent. If a community amends its bylaws to provide for the association having more of a stake or interest in the rental of units, perhaps there would be some right. However, he said, owners often realize that such a restriction affects the marketability and value of their units.
Are associations allowed to have any bias for or against families with children? The only associations that could regulate such a thing would be lawfully established adult communities, whose purpose is to do just that.
In other associations, any rule meant to impact children should be based on conduct. As an example, if the community has a gym, children should not be banned outright. Instead, Greenstein noted, rules should prohibit the type of conduct that people typically associate with children.
“In recent years, a Minnesota condominium had a rule which restricted children from riding bikes in a certain green area of common space. Because HUD believed this rule unfairly impacted families with children, it was found to be in violation of fair housing laws and the association paid a significant penalty. The rule could easily have just prohibited bicycle riding in the common space by everyone instead of limiting the rule to children,” Greenstein explained.
Is an association required to allow residents to keep animals if they have a prescription from their doctor for a comfort or service animal? According to Greenstein, this should be addressed on a case-by-case basis, but if the resident requires the animal in order to have equal use and enjoyment of the property, then the association should really allow it. Regardless, an association should present all requests to their attorney to ensure it acts appropriately, especially in regard to the FHA.
Can an association question a resident about the prescription or medical note for that animal? The association can indeed question a resident about the prescription or medical note, Greenstein said, unless their dis- ability is obvious. Such medical notes need to meet the specifications required by law, and the association can require residents to provide acceptable notes. The association cannot question the severity of the disability, but they are allowed to ask about the relationship between the disability and the required accommodation. “Because of the complexity of this area of the law, it is prudent to obtain advice from your attorney whenever a new situation arises,” Greenstein said.
What is the difference between a comfort animal and a service animal? A service animal performs a tangible service for a person with a disability, such as a guide dog guiding someone who is blind. On the other hand, a comfort animal’s purpose is to provide psychological support.
Can associations restrict the size of these animals? According to Greenstein, they cannot. It is difficult for associations to impose size and height restrictions on service and comfort animals. Some states even deem it unreasonable for associations to regulate it. For example, an owner’s guide dog might be above the acceptable height, so the association may need to allow it. The association needs to show a legitimate reason for these restrictions if they do want to try to enforce them, Greenstein explained. Again, many of these decisions must be made on a case-by-case basis, and it is often better to simply allow such accommodations.
Does the Americans with Disabilities Act (ADA) affect how an association makes up its rules for service animals? The Americans with Disabilities Act does not apply to this type of situation, Greenstein said. Instead, the ADA applies to public accommodations and physical constructions, i.e. whether or not an association is required to modify a door- way, stairwell, etc.
Can an association ever restrict the areas where the comfort or service animals are allowed? Placing restrictions on the areas where the comfort or service animals are allowed depends on the situation, Greenstein noted. Limiting the number of comfort or service animals a resident can have also varies by situation, but it largely depends on how it impacts the resident’s condition. Associations may also be able to limit the areas where animals are allowed in order to comply with health regulations.
Is it common or even permissible for associations to require that the animals are photographed when they are first brought onto the property? If, for instance, a disabled person’s service animal won’t sit for a picture, does the association then prevent that person from having the animal? Associations must handle each case with care, Greenstein said, erring on the side of caution when making decisions. If an association requires pets to be photographed, then all pets within the community must be photographed, not just certain ones. “If an assistance animal will not sit for a photograph, the disabled person should not be penalized,” Greenstein stated.