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 exempt 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 change of the rules) or a modification (a change in the physical properties of the association – e.g., adding a wheelchair ramp) he or she feels is necessary to facilitate his or her use of the property, Miske advised that 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, it’s best for associations to try to treat everyone the same 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? The FHA provides for the recovery of legal fees and penalties, Miske said, which means an association needs to be very careful and completely certain that it is making the correct decision 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. He noted that many associations also fall into the pitfall of discrimination through seemingly harmless regulations, such as pool restrictions, wherein they may be discriminating against a protected class without even realizing it (e.g., adult swim time).
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. “This makes violation of the FHA a very substantial and expensive penalty,” Miske stated.
The Department of Housing and Urban Development (HUD) is responsible for enforcing 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 office. If HUD believes there has been discrimination or that it is likely that there was discrimination, he said, it may 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. “HUD is extremely resident friendly, so your association should take this into account when determining what course of action it decides to take in any particular instance,” Miske said.
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, he said. Some prohibited discriminatory bases include, but are not necessarily 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.
Are FHA violations considered civil violations or criminal acts? FHA violations are almost always civil violations, and not criminal. In very rare situations, FHA violations could also be criminal if they violate the civil rights amendments or otherwise violate a state or federal criminal statute, Miske noted.
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. Miske explained, “A common problem exists when associations attempt to differentiate use of facilities based on age, often referring to children not being allowed or adult times. These types of provisions should be carefully reviewed by your association’s attorney before being adopted.”
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 the act becomes problematic, he noted. A clear example of such a violation would be a rule that prohibits children from riding the elevator. Furthermore, 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 partnership/civil union status, sex, gender identity, sexual orientation, disability and familial status.
What is discrimination based on protected classes? 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. 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, Miske explained, it can be argued that the board has discriminated against that protected class.
What are considered reasonable accommodations or reasonable modifications for people with disabilities? For example, one would think it a reasonable modification for a wheelchair-bound resident to request the addition of a ramp to one of the common area buildings. However, if an engineer determines that the desired ramp would not be safe or feasible, that same request might not be reasonable. Otherwise, Miske said that associations are required to give disabled residents the reasonable accommodations (e.g., designating certain common element parking near the common area building as handicapped) 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.
Religion is an area of potential legal concern relative to civil rights. For example, many associations ban residents from 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, they must then allow similar displays for others, he said, so as not to discriminate. Banning all religious displays, though, may prove problematic, since residents could present that as a violation of the FHA. Such a restriction may even be seen as a violation of free speech, he added.
Can associations prohibit religious services in common areas? The association would have to decide if that restriction 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, Miske 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, so an association may be able to discriminate against them. However, 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 house in the association? Individual owners decide how they handle their private homes, including to whom they rent. It is feasible, Miske said, for those owners to choose to not rent to sex offenders, without any association involvement or putting itself at risk for discrimination.
It is very difficult and extremely risky 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 homes, Miske said, “for example, by requiring some specific background check or credit score, the effect of such a rule may have a disparate impact on a protected class and therefore violate the law.”
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, rules should be passed that encourage or prohibit conduct, not ones that reference children or adults. As an example, Miske said if the community has a gym, children should not be banned outright. Instead, rules should prohibit the type of conduct that they don’t want, and then they should enforce that rule.
Is an association required to allow residents to keep animals if they have a prescription from their doctor for a comfort or service animal? 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 is likely obligated to 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, Miske said, unless their disability is obvious. Such medical notes need to meet the specifications required by law, and the association can require residents to provide justification for their emotional support or service animals under many instances, he said. 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.
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 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? “Essentially, no,” Miske said. It is difficult for associations to impose size and height restrictions on service or comfort animals. The association needs to show a legitimate reason for any restrictions on these animals if it wants to try to enforce them. 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. Instead, he explained, the ADA applies to public accommodations and physical constructions (i.e., whether or not an association is required to modify a doorway, 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, Miske 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, he added.
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, erring on the side of caution when making decisions, Miske advised. If an association requires animals to be photographed, then all animals within the community must be photographed, not just certain ones. “We have used the term ‘animal’ as opposed to ‘pet’ throughout this section, because the FHA does not view service or support animals as pets. Therefore, by definition, any prohibition on ‘pets’ would not apply to such animals,” Miske explained.