Being knowledgeable of how to govern your community responsibly in this regard is highly important.
What is a common-sense approach to stay in compliance with the Fair Housing Act? “Treat everybody the same,” said Guerra. “Review all of your actions through a standard of equal treatment of everyone,” he said. The minute you see something which possibly excludes or targets someone in particular, you have reason for looking into what you’re doing further, and possibly seeking legal counsel. “If it doesn’t apply to everybody, it has the potential to be discrimination,” he said.
He explained that problems with the Fair Housing Act can result in some very substantial liability for the association. “Fair Housing Act compliance in the State of Michigan is handled by the Michigan Department of Civil Rights. The Michigan Department of Civil Rights, at no cost to the complainant, will institute an investigation against the association to determine whether a person’s rights have been violated. Assuming there has been no discrimination, the complaint will often be dismissed after the association provides a written response and the Department of Civil Rights conducts its investigation If, on the other hand, the Department of Civil Rights has reason to believe there has been discrimination, the Department will conduct an administrative hearing to determine if the association has violated the claimant’s civil rights under the Fair Housing Act. At that stage, the association is at a disadvantage because it is in front of an administrative agency that has the power to interpret and enforce its own rules,” said Guerra. “The Association doesn’t necessarily want to put itself in front of an administrative proceeding arng that is has not committed discrimination, when the Department of Civil Rights has moved forward with an administrative hearing after going through an investigation stage and saying, yes, there is reason to believe there has been discrimination,” he said.
Additionally, the Fair Housing Act has significant penalties associated with it. “In some of these discrimination cases there have been judgments entered in the hundreds of thousands of dollars,” he said.
Guerra explained that only after going through the administrative hearing are you allowed to appeal the decision in a court of law. “So it can be exceedingly time-consuming and expensive,” he said.
For associations — like any governmental entity, or any private citizen — there are limitations on how they can treat others. Associations, like anybody else, cannot discriminate against any protected class or due to one’s:
“So associations, especially when you’re talking about enforcing restrictions through a fining procedure, self-help or through the courts,, must treat everybody the same. The enforcement of these restrictions must be uniform (i.e. they cannot be arbitrary) and cannot be discriminatory either in form or application. So when an association is doing its job to enforce restrictions, it could is have implications in the civil rights arena,” he said.
Any time an association strays from uniformity or equal treatment, they face the possibility that someone will file a civil rights complaint.
Could Fair Housing Act violations be considered civil violations or criminal penalties? “They are typically civil, but could rise to the level of criminality as well. For instance, in the case of taunting based on ethnicity, this civil violation could rise to the level of ethnic intimidation, which is a criminal act. It is possible that you can have conduct that is both a civil and criminal violation,” he said.
What constitutes problematic wording in a covenant or rule made up by the association? Problematic wording includes any covenant or rule that is not neutral in terms of age, gender, religion, sexual orientation, etc. “Once an association starts creating distinctions, you’ve got a potential problem,” said Guerra.
“Discrimination is based on whether protected class are being treated differently,” he said. He also explained that over the years the law has evolved to add protected classes. Race, religion, national origin, age, familial status, disability, and sexual orientation are all now protected classes.— “It’s a slowly moving target,” he said.
“From a legal standpoint, is religion a potential legal concern in the area of civil rights? The answer is yes,” said Guerra. He provided an example that you cannot, in your rule making, favor one religion over another. “A classic example are rules and regulations addressing when an owner may put up and must take down ‘Christmas lights’’ but never permitted or had a rule dealing with anybody’s Halloween decorations, Hanukah decorations, or other religious or non-religious holidays. An association must be content-neutral in its rules,” he said. You cannot favor or oppress any given religion in what you do.
How are religious displays treated in the Fair Housing Act? “If you’re giving one religion the opportunity to do something that you’re not giving another religion, you’re discriminating,” he said. He explained that there is no law that says that you need to allow people to display holiday decorations or lights of any kind on commonly-owned property. “Many associations choose to allow people to do that. Well, once you venture into the area of doing that, which is discretionary, you need to make sure you do it for everyone,” he said.
Can associations prohibit religious services held in common areas? Guerra said, yes, as long as they’re restricting all religious services, not just certain ones.
Are sex offenders or individuals who pose a direct threat to a community considered disabled? For Fair Housing Act purposes, can there be restrictions against them?
Guerra said that, sex offenders are not considered disabled under Fair Housing laws and are not otherwise a protected class. “Specifically, in Michigan, the association can adopt restrictions that prohibit sex offenders from occupying a residence in the community,” he said.
Are associations allowed to have any bias against allowing residence by families with children? “The only bias that is tolerated would be with respect to communities that are certified as housing for older people. That is government-sanctioned discrimination against people under the age limit,” he said.
For communities with children, how can pool and clubhouse rules discriminate against children, and is it okay for associations to establish rules restricting children from these areas? Guerra noted that this is an evolving area and that there have been many recent court decisions addressing the issue. “Associations often get into trouble when restricting children at the pool and clubhouse,” he said “Focusing on items such as swimming ability and behavior will help avoid a claim of discrimination based on age or familial status,” he said.
Rules and regulations need to be carefully crafted, keeping in mind objective standards. You can’t use generalizations or stereotypes in creating rules. “Why is sixteen the magic age, or twelve, or thirteen? Why not instead focus on whether or not the person is in fact able to swim?” Focus on the real issue, in this case, the ability to swim, not the age. “That’s where you run into problems,” he said, “You can’t overly generalize. You have to use some objective standard to differentiate.”
This doesn’t mean you can’t restrict certain uses of the pool at certain times. For example, when time is set aside during specified hours for lap swimming. “It’s the stereotypes and generalizations that are going to get the association in trouble,” Guerra said.
Is an association required to allow animals for those who have a prescription or note from their doctor for a comfort or service animal? “It’s not all that simple, but more often than not if somebody is willing to pursue what is needed to satisfy the Fair Housing guidelines, yes, the association will have to permit support animals, regardless,” said Guerra.
Does an association have any right to question the resident about the prescription or note? “The Association has the right to request that the adequate or required information be contained in the document,” he said.
You won’t see a statement in the Fair Housing Act that says that, if you have a note from your doctor, you can have a pet. “It’s not nearly that simple,” said Guerra. He noted that HUD has provided guidance indicating that written support for an emotional support animal need not only come from a physician or psychiatrist, but also may be provided by a social worker or other mental health professional who is in a position to know whether the animal provides emotional support that alleviates one or more symptoms or effects of the disability.. “It doesn’t mean they have to be a physician, but they do have to have appropriate qualifications. There has to be the identification of disability,” he continued. There also needs to be a connection between the disability and the keeping of a animal as part of the treatment plan, or way to ameliorate, to some degree, the effects of the disability. “There is lots of information required and some dots that have to be connected, at least in some arguable fashion, before the letter is going to be an appropriate submission. So if you don’t have everything you need,” he said, “and that’s required by the law, yes, you’re entitled to ask for it.”
What is the difference between a comfort animal and a service animal? “They’re entirely different,” said Guerra. “Service animals are actually going to have some type of certification training behind them to do work or perform specific tasks for a person with a disability. They can be seeing-eye dogs — that’s one type of service animal. There are various others, where they actually assist the person in conducting day-to-day activities of some sort,” he said. Alternatively, he explained, emotional support animals are usually there for psychological reasons, or they are something that makes a person feel emotionally better.
However, according to Guerra, both types of animals are covered by the same set of regulations under the Fair Housing Act. “If you provide the requisite information,” he said, “it doesn’t matter whether it’s a certified service animal or an emotional support animal, you’re going to have to allow it.”
“In Michigan that is not possible as the Court of Appeals has determined that in most instances a size or weight restriction on animals is unenforceable because it is ‘unreasonable.’ And by unreasonable, the Court of Appeals upheld a judge’s determination that the size and weight of an animal itself does not have any logical relationship to the potential harm that was the target of the restriction. And as part of his explanation, he said a forty-pound pit bull is going to be far more dangerous to the community as a whole than a ninety-five pound black Labrador,” said Guerra.
Does the American’s with Disabilities Act (ADA) affect how an HOA draws up its own rules on service animals?
Guerra’s opinion is that it doesn’t. “The association is going to find itself implicated not through the ADA, but through the Fair Housing Act,” he said. The ADA, he explained, only applies to public accommodations. ADA implications may apply to association facilities that are open to the public, but not within units. The ADA is much more specific with respect to construction standards for making public facilities accessible, but in the area of service animals, there will be nothing more in the ADA than is already required by the Fair Housing Act.
Is it permissible for the association to restrict certain areas where the comfort animals are allowed? Guerra said that you can restrict only if there is some health regulation that you need to comply with.
Is it common to require that these animals be photographed when they first come onto a property? “Sure, as long as it applies to any animal,” he said. He explained that it’s perfectly reasonable for an association to require the registration of pets. “It should not just limit itself to the registration of some pets, because if it does, that’s going to be an unreasonable restriction,” he said. If it’s seeking registration and/or pictures of all pets, he notes, there is nothing wrong with that.
Can an association, while allowing comfort animals, limit the number of those animals that a resident has? Guerra said, if there is a demonstrated need for more, which would come from the person treating the occupant, then, in his opinion, the association would have to allow additional comfort animals..