The Fair Housing Act & Civil Rights

Association boards must always be careful to not discriminate based on the protected classes.  In addition, compliance with the Fair Housing Act in most instances requires a careful examination of a given set of facts and circumstances. A common sense approach to any request for an accommodation under the Fair Housing Act is to avoid any denial of the request at the outset, whether due to deed restrictions, rules or otherwise, and to seek the advice of professionals as to your obligations in any given case. Note that any unreasonable delay in responding to a request for accommodation, may itself constitute a violation of the Fair Housing Act, so all such efforts should be made reasonably quickly. Also, all rules and regulations should be reviewed to identify and remove any language that may violate the Act, such as “adult swims.” 

Understanding how to appropriately respond to an accommodation request is a common issue for community associations.  The penalties for community associations that violate Fair Housing Laws can be significant including actual damages, statutory damages, punitive damages, and attorney’s fees awards. 

No – while obtaining FHA certification may be in the Association’s best interests for unit owners to obtain financing for units, the Board does not usually have the duty to make sure that the Association is FHA certified.  That said, if an owner requests documents from the Association to assist their lender in obtaining FHA certification, the Association must usually provide those documents and cooperate with that request through the normal records request policy.

FHA certification is the process by which the US Department of Housing and Urban Development (HUD ) reviews and certifies that an association is compliance with all of HUD’s requirements for condominium associations.  Without FHA certification, units within the condominium are not eligible for FHA insured financing.

The Civil Rights Commission investigates, mediates and prosecutes alleged violations of Fair Housing and other anti-discriminatory laws.

All Ohio community associations must comply with FHA laws. The Fair Housing Act prohibits discrimination against individuals based on race, color, sex, national origin, familial status (that includes age), religion, or disability. This means that the board cannot adopt a rule, propose a restriction, take or fail to take any action that discriminates based on these protected classes.

Penalties for violations of Fair Housing Laws are civil in nature.   

Any rule or covenant that on its face discriminates against a protected class, or in practice has that effect, is problematic and is likely illegal. Specific examples include rules based on age such as “adult swims” or “children cannot play in the street.” Rules that apply to everyone regardless of age, such as pool hours and prohibitions against playing in the street that are not limited to “children,” are generally permitted.

Generally speaking, association amenities are for the benefit of owners, residents and their guests. Allowing outside groups to use association amenities may convert the association’s property into a place of “public accommodation” and subject it to the Americans with Disabilities Act (“ADA”), which could require physical modification of the property.

Otherwise and aside from any fair housing concerns, an association has an obligation to treat all owners and residents in a nondiscriminatory fashion. Setting different fee policies based on the type or membership of a particular group of owners or residents would likely violate the association’s restrictions, if not fair housing laws. 

The Fair Housing Act prohibits discrimination against individuals based on race, color, sex, national origin, familial status (including age), religion, or disability. This means that the board cannot adopt a rule, propose a restriction, take or fail to take any action that discriminates based on these protected classes.

The “elderly” are not specifically identified as a protected class under Federal or Ohio state fair housing laws, but age is considered part of familial status.  As a result, unless the community is specifically identified as Housing for Older Persons, the community cannot discriminate or adopt rules that are age based.  

While sexual orientation is not specifically listed as a protected class in the Fair Housing Act, a recent United States Supreme Court decision determined in an employment related case that discrimination based on sexual orientation is essentially based on “sex,” which is a protected class. In addition, many local jurisdictions such as cities and counties have their own anti-discrimination laws and ordinances, many of which protect sexual orientation.

Associations have an obligation to provide reasonable accommodations to disabled persons. In most instances, that may require providing a translator at annual or board meetings if requested. At a minimum, associations must allow disabled owners to bring translators to such meetings if they so desire.

A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to fulfill their program obligations.

An association can deny a request for a reasonable accommodation if the request was not made by or on behalf of a person with a disability or if there is no disability-related need for the accommodation. In addition, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable – i.e., if it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider’s operations. The determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the provider, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.

Yes.  An association may not discriminate against owners or residents based on their religion. 

Depending on an association’s recorded restrictions, an association may institute reasonable rules regarding the display or placement of any items, including religious displays, in the common property as long as those rules are applied evenly and in a nondiscriminatory fashion. 

An association may regulate activity in the common areas as long as such regulations are reasonable, applied evenly and in a nondiscriminatory fashion. If an association is permitting other “services” in or on the common property, it cannot discriminate against “religious services.”

Currently, convicted sex offenders are not considered to be “disabled” under Fair Housing Laws. As such, reasonable restrictions, typically regarding the most serious of sex offender categories where government notification of the offender’s residence is required, is permitted.

No, unless the association is specifically established as a Housing for Older Persons, commonly referred to as an “over 55” community, it may not discriminate against families with children.

Rules cannot, in most circumstances, discriminate against children.  An association may establish reasonable rules for individuals under a certain age when directly related to the safety or health of such individuals, or when recommended by the manufacturer of certain equipment. For pools, typically that means that individuals under the age of 12 may be required to be accompanied by a responsible person over the age of 12 who is a capable swimmer. However, “adult swims” or other age-specific rules are prohibited. For the use of exercise equipment, an association may rely on a manufacturer’s recommendation such as “not for use under 16 years of age.”

HIPAA has limited effect on accommodation requests.  Generally residents voluntarily provide confirmation of a disability that is not apparent.  Associations are not permitted, however, to request actual medical records or diagnosis information as part of an accommodation request.  To the extent any medical information is provided to the Association, it should not disclose that information to third parties. 

An association will be required to allow a comfort or service animal based on a note from a doctor, social worker or other healthcare worker that confirms the existence of a disability and the need for the accommodation. In instances where a disability is apparent, no note or prescription may be necessary and it simply becomes a question of whether the requested accommodation is “reasonable.”  If an owner makes such a request, the association should immediately review the facts of the particular circumstance with legal counsel to determine the scope of the board’s authority on the matter.

An association has the ability to make a “reasonable inquiry” into the existence of a disability, but that inquiry is extremely limited and cannot include requests for specific diagnosis, prescription, prognosis or the identification of any specific disability. Rather, the association can request a note from a healthcare profession that merely needs to confirm that a disability exists.

Services animals are defined by the regulations created pursuant to the Americans with Disabilities Act as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.  In contrast, comfort or emotional support animals are not specifically defined by any statute or regulation.  Comfort or emotional support animals do not have to be specifically trained.  These animals are generally used by disabled persons to provide therapeutic or emotional support to alleviate the symptoms of the disability.  

Associations must allow either type of animal for disabled residents, again provided that the animal is necessary to accommodate the resident’s medical condition.

As a general matter, service and comfort animals are not subject to size restrictions. 

The Americans with Disabilities Act (ADA) applies to places of “public accommodation.” An association is not considered a place of “public accommodation” unless it allows use of its amenities and property to non-owners or non-residents, or outside groups, whereupon the Act may apply as to those amenities.

Typically, a disabled owner or resident requiring an accommodation for a comfort animal is permitted to go anywhere on the property that the owner or resident is permitted to go, unless there are specific and identifiable health or safety concerns, such as in food processing areas or swimming in a pool, although permitting a comfort animal in the pool area will generally be required.

An association may not have a rule that requires service or comfort animals to be photographed when first brought onto the property, unless the rule requires all animals to be photographed.  Rules on pets must be applied evenly to all, and may not be drafted to place additional burdens on service animals.

A request for an accommodation must be considered on its own facts and circumstances. In some instances that may include permitting an owner or resident to possess more than one comfort animal.  Again, if an owner makes such a request, the association should immediately review the facts of the particular circumstance with legal counsel to determine the scope of the board’s authority on the matter.

Yes. Associations are considered “housing providers” and thus subject to Fair Housing Laws.