Violations of the Fair Housing Act can result in severe penalties for associations. Being knowledgeable of how to govern your community responsibly in this regard is very important.
First, the association’s board should treat every- one the same. If the association treats all individuals in the same position in the exact same way, it is difficult for an owner to argue that they were discriminated against because of a protected classification. Additionally, boards should think critically about whether a restriction or rule or an interpretation of those provisions would have an undue effect on a protected class. Also, boards should be cautious before denying an owner’s request for an accommodation due to a disability. If wrongfully denies a request, it will be sued and will lose.
According to Prince, timeliness of responses can be the biggest issue. Associations can get in just as much trouble for not responding in a timely manner than if it wrongfully denies a request for an accommodation. Moreover, since boards are not experts on all cultures and religions, they will not always know that a restriction discriminates based on a protected class. Pool and bathroom rules are two such trouble spots where associations discriminate against families and based on sex without knowing about it.
People who believe an association has discriminated against them in violation of the FHA can file a charge of discrimination with the Illinois Department of Human Rights (IDHR) or the United Stated Department of Housing and Urban Development. The IDHR will investigate the claims and require the association to defend itself. If they find discrimination, they will file a lawsuit against the association. If they do not find substantial evidence of discrimination, the owner can still sue the association in federal court. If the owner wins, he or she is entitled to damages and attorneys’ fees and costs.
Prince stated that there are many different civil rights, but in dealing with associations we are generally dealing with freedom from discrimination in housing. Associations are prohibited from discriminating against people based on several protected classes, including race, color, religion, national origin, sex, disability (handicap), and familial status.
Violating the FHA is considered a civil violation. 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.
Any provision that differentiates, either directly or indirectly, between people based on a protected classification. For example, adopting rules that allow “family swim time” or have “adult” swim hours, would violate the FHA and the IHRA based on familial status.
Protected classes include race, color, religion, national origin, sex, disability (handicap), and familial status. Congress and the General Assembly have decided that it is improper to differentiate amongst people based on these characteristics. However, just because someone is in a protected class does not mean they have been discriminated against. When a decision or rule of the board either singles out a protected class or unfairly burdens a protected class, the board has discriminated based on a protected class.
Age and sexual orientation are explicitly included as protected classes pursuant to the Illinois Human Rights Act. In contrast, the FHA does not explicitly list age or sexual orientation as protected classes. That being said, familial discrimination can include some age characteristics and federal courts have seemed pen to interpreting sex discrimination as including sexual orientation discrimination.
Prince said that this is a very current issue. At least one association has been found to have discriminated against a person when it did not provide a sign language interpreter for an important decision coming before the members.
Prince said that requests for reasonable accommodations are on a case by case basis. Associations are required to give a person a reason- able accommodation if the person or someone linked to the person (such as a family member) is disabled and an accommodation is reasonable and necessary to afford the person an equal opportunity to use and enjoy their home and the services provided by the association. An accommodation is reasonable if it does not impose an undue financial burden on the association and does not run contrary to the very purpose of the association.
Absolutely. CCRs and rule provisions that could be interpreted as prohibiting a persons’ free exercise of religion are discriminatory. For ex- ample, an association that has a rule prohibiting owners from putting any- thing in the common element hallway, cannot be read to prohibit owners from placing a religious object in the hallway if it is required by their religion such as a mezuzah.
If an association shows a preference for a certain religion through a religious display or limits a specific religion’s religious display, it could lead to a claim of discrimination. Associations have to provide equal access to religions; it can- not only allow Christian displays. Associations should avoid involving themselves in religion.
Are sex offenders and/or individuals who pose a direct threat to a community considered disabled for the purposes of FHA, and can there be any restrictions against them?
Sex offenders and felons are not listed as protected classes. An Indiana Supreme Court case specifically found that an association did not discriminate when it prohibited sex offenders from leasing units. However, HUD has recently issued guidance on the topic. HUD has stated that it could be discriminatory to ban felons or sex offenders if it has a disparate impact based on a protected class such as race. Associations should evaluate whether any such ban in its governing documents is worth the risk.
The only associations that can discriminate against children or families are associations that are properly created as housing for older persons (55+ housing). Other associations are prohibited from having restrictions that specifically or disparately impact children or families. Most of the issues related to discrimination against children are related to pools and other recreation items.
Are associations required to allow residents to own animals if they have a prescription or note from their doctor for a comfort or service animal?
If an owner is disabled and appropriately requests a comfort or service animal, the association will have to allow the owner to bring the animal into the association even if there is a prohibition on keeping pets or the specific species of animal. However, it should be noted that not all notes entitle a person to a comfort animal accommodation. Associations receiving requests for animal related accommodations should consult with their attorney to ensure compliance with the FHA.
Do associations have the right to question the resident about the prescription or note they are providing for a comfort animal?
If the disability is readily apparent, the association cannot request additional information. Even if it is not apparent, the association cannot inquire as to the nature or severity of the impairment. Instead, it can ask for disability related information that is necessary to verify the person has a disability (a physical or mental impairment that substantially limits one or more major life activities), describes the needed accommodation and shows the relationship (often called a nexus) between the condition and the needed accommodation. Prince advises that the doctor’s note can be written by a medical practitioner and does not have to be a doctor or psychologist.
If an owner or resident makes a proper request for an accommodation, the association cannot restrict the weight or size of the animal. If it is unrelated to a re- quest for an accommodation, size limitations can be reasonable if they are appropriately adopted (either in the declaration or rules) and if there is a legitimate reason for them. Practically speaking, it is difficult to enforce size and weight restrictions.
Does the Americans with Disabilities Act (ADA) affect how an HOA draws up its own rules with service animals?
The association is not generally bound by the ADA. However, the FHA is interpreted similarly to the ADA as it pertains to service animals.
Prince said that more and more complaints have been brought to HUD and other entities concerning restricted areas for comfort animals. By and large, the associations pay out in those cases. Thus, Prince does not recommend that associations adopt policies restricting the areas comfort animals can go.
Is it common and permissible for associations to require that animals be photographed when they’re first brought onto the community’s property?
Prince said that is quite uncommon to photograph animals. However, some associations are moving towards requiring dog owners to submit DNA samples to try and confront dog feces that are left on the common areas.
If an association does allow comfort animals, can they limit the number of animals that one resident can have?
The association cannot limit the number of comfort animals a resident can have. Instead, the resident’s condition and whether it is necessary to have more than one animal for that condition will determine whether the resident can have more than on animal.
Prince said that for all intents and purposes, associations are housing providers.
Yes. Recent guidance from HUD has stated that associations can be responsible for failing to address discrimination by members based on a protected class. Associations will need to address discriminatory animus even if the member has not complained to the association.