When a board member or community manager hears the phrase “fair housing”, many thoughts come to mind regarding what this means, and how it may impact their association, but, more often than not, their perceptions are based on historical misinformation passed on to them by others who themselves did not properly understand fair housing. The purpose of this article is to properly educate community leaders on fair housing laws and principles and to discuss real-word application to community associations.
Fair Housing Law
While many states, like Pennsylvania, have adopted their own fair housing laws at the state level, for the sake of brevity this discussion will focus on federal fair housing law as federal law applies to every state. Title VIII of the Civil Rights Act of 1968 (“Fair Housing Act” or “FHA”), 42 U.S.C. §§3601 – 3631, and its 1974 amendment, made it illegal to threaten, coerce, intimidate or interfere with anyone exercising a fair housing right or assisting others who exercise that right, or to advertise or make any statement that indicates a limitation or preference based on a protected class, which includes race, color, national origin, religion or sex (gender).
The Fair Housing Amendments Act of 1988 (FHAA) added two more protected classes to the FHA: (1) familial status; and (2) individuals with disabilities. Familial status includes the presence or expected presence of children under 18, pregnant women and individuals securing the custody of children under 18. Exemptions to familial status include when the housing is planned and managed for people 55 years of age or older (such as in an age-restricted “over-55” community) and the policies and procedures that demonstrate its intent to qualify for the exemption are followed and published. A “disability” under the FHA is a mental or physical impairment that substantially limits one or more major life activities and can include sensory issues, AIDS/HIV as well as persons recovering from alcohol or drug addiction.
The FHA applies to community associations because the FHA prohibits discrimination, by the association, related to any services and/or facilities the association provides related to the residential housing in the association. 42 U.S.C. §3604(b).
Fair Housing Discrimination under the FHA
The US Department of Housing and Urban Development (“HUD”) has interpreted the FHA to include two types of discrimination: Disparate Treatment and Disparate Impact (also known as “Discriminatory Effect”). Disparate Treatment involves discrimination due to different treatment, i.e., treating someone differently because of race, color, sex, religion, national origin, familial status or disability. Disparate Impact involves discrimination by different impact, i.e., when a neutral policy or procedure has a disproportionately negative impact on a protected class.
While most discrimination complaints brought under the FHA have been brought under a theory of Disparate Treatment (it is noted that in the case of associations specifically, claims based upon a failure to reasonably accommodate a disability are the most frequent Disparate Treatment complaints made by owners), board members and managers must recognize that claims brought under a theory of Disparate Impact appear to be a growing phenomenon. In fact, in 2013, HUD issued a final rule entitled “Implementation of the Fair Housing Act’s Discriminatory Effects Standard”. This final rule provides that if a practice has a “discriminatory effect”, HUD (or a private plaintiff) can establish liability under the FHA even if a facially neutral practice has no discriminatory intent. The United States Supreme Court recently (June 25, 2015) held that Disparate Impact claims are cognizable under the Fair Housing Act (see Texas Department of Housing and Community Affairs (TDHCA) v. Inclusive Communities Project, 13-1371). This case is now the law of the land as it relates to making Disparate Impact claims under the FHA; what this means for associations is that although an association may not intend to discriminate against a class or group of people through a policy or practice, a violation of the FHA may still be found if the policy or practice has a disproportionally negative impact on a protected class. Frequently discussed examples include criminal background checks, rental restrictions, credit checks and the adoption of policies related to placing restrictions on children for swimming, riding bicycles on the property and parental supervision requirements.
Board members and managers should be aware that the FHA allows for the imposition of severe civil penalties, including fines, against the association and/or against individual board members, for a finding of discrimination under the FHA, as well as the imposition of criminal fines and possible prosecution and imprisonment for violations of the FHA that involve coercive threats or intimidation.
The Most Common Fair Housing Complaints in Associations
1. Failure to provide a “reasonable accommodation” for a disability
The FHA provides that a “reasonable accommodation” must be provided when such an accommodation may be necessary to afford a person an equal opportunity to use and enjoy a residential dwelling – in the context of a community association, this includes the common areas and facilities available to all owners in the association. As it relates to this issue, the most frequent question that arises by board members and managers is: what is a “reasonable accommodation”?
A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling.
The owner seeking the accommodation must actually request the accommodation. The association must grant the request for the reasonable accommodation unless the accommodation imposes an undue financial and administrative burden on the association or causes a change or alteration to an existing policy, practice or service that fundamentally alters the nature of the policy, practice or service. Whether or not a requested accommodation imposes an undue financial/administrative burden and/or fundamentally alters the nature of a policy, practice or service is determined on a case-by-case basis.
Perhaps the most common request made to associations for a reasonable accommodation relates to animals. It is more common than not for an association to restrict animals (this is often entitled “pet rules” in the controlling documents) in some manner – whether it is an absolute ban or a restriction on species, weight or size, chances are that some type of animal restriction exists in nearly every association.
Reasonable accommodation requests for animals are sought by owners in relation to the accommodation of a disability; because a disability under the FHA can be physical, mental, sensory, AIDS/HIV and include persons recovering from addiction, the request can come to the association for a myriad of reasons.
The owner requesting the accommodation must offer proof of the disability unless it is readily apparent. The association should be careful in how it approaches the request and responds as making the request burdensome on the owner or delaying the request may give rise to a claim of discrimination. There also must be a reasonable relation between the disability and the accommodation requested, i.e., the animal. An owner’s failure to provide such information would relieve the association from liability for a charge of discrimination in denying the request. Generally, an owner must obtain documentation from a physician, psychiatrist, social worker or other mental health professional that the animal provides support that mitigates at least one identified symptom of the disability. In doing so, however, it is important to note that the owner need not disclose the specific details of the disability nor provide a detailed medical history to the association.
There are two classes of animals related to reasonable accommodation requests:
i. Service Animals
A service animal is an animal that is individually trained to do work or perform tasks for the benefit of an individual with a physical, intellectual, and/or a mental disability, i.e., guiding individuals with impaired vision, providing protection or rescue work, pulling a wheel chair, or retrieving dropped items. Under the Americans with Disabilities Act, service animals are limited to dogs and miniature horses. Establishing that the service animal is necessary in order to use and enjoy the residence is critical. The owner is not required to provide proof of training or the certification of the animal. The association may not request a pet “fee” or “deposit” be paid by an owner that requires a service animal because the service animal is not a “pet”, but if the animal causes damage to a common area, the owner may be required to pay for the cost of repair. Service animals are permitted in all areas of the residence and the common areas.
ii. Emotional Support/Companion Animals
Associations have seen an explosion of emotional support/companion animal reasonable accommodation requests over the last five years. Emotional support/companion animals provide some therapeutic benefit to a person with a mental/psychiatric/emotional disability, and do not require specific training like a service animal. The mere presence of the emotional support/companion animal mitigates the effects of the emotional or mental disability for the person with the disability. Emotional support/companion animals can be virtually any species of [domesticated] animal. An owner requesting an emotional support/companion animal as a reasonable accommodation must demonstrate a relationship between his or her ability to function and the companionship of the animal. The association may not request a pet “fee” or “deposit” be paid by an owner that requires an emotional support/companion animal because the animal is not a “pet”, but if the animal causes damage to a common area, the owner may be required to pay for the cost of repair. Emotional support/companion animals are permitted in all areas of the residence and the common areas.
B. Parking issues.
Requests for “assigned” (or relocated) parking spaces are probably the second most common requests made to associations for a reasonable accommodation under the FHA. The parking space requests are made by owners seeking to accommodate a disability.
Like with any reasonable accommodation request, an owner requesting the parking accommodation must offer proof of the disability unless it is readily apparent and there must be a reasonable relation between the disability and the accommodation requested, i.e., the assigned or relocated parking space.
Whether or not an association must grant the request for an assigned or relocated parking space depends on the type of parking that exists in the community. For example, if the association has unassigned parking spaces in common areas, the association must accommodate the request by the disabled resident to use a spot closest in proximity to the owner’s residence or wide enough to accommodate an “accessible” van.
Finally, courts have held that the association cannot rely upon restrictions in governing documents to deny a reasonable accommodation request for parking.
As counsel to many HOAs and condominium associations, my clients have repeatedly asked me what, if anything, they can do about a hoarder in the community. While the answer was never simple, and often focused primarily on health and safety issues, I soon realized that fair housing principles were also relevant to the issue as some jurisdictions are actually beginning to recognize compulsive hoarding as a “disability” under the FHA. The thrust of the argument pertaining to compulsive hoarding being recognized as a disability under the FHA is that compulsive hoarding is founded in some form of Obsessive-Compulsive Disorder (OCD) and is therefore to be treated as a mental illness.
2. Failure to provide a “reasonable modification” for a disability.
Another type of disability discrimination prohibited by the FHA is a refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises. What exactly is a “reasonable modification”?
A “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. The owner seeking the modification must actually request the modification, and the owner seeking the modification must pay for the modification that is sought. Reasonable modifications can include structural changes to interiors and exteriors of dwellings (i.e., widening doorways) and to common areas (i.e., steps and walkways). A request for a reasonable modification may be made at any time during the ownership of the residence. The FHA makes it unlawful for an association to refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises. An association’s governing documents cannot form the basis of a denial of a request for reasonable accommodation.
3. Violation of FHA – Familial Status.
When an association implements rules and regulations which treat people differently because of their age (i.e., adults vs. minors), this can be viewed to negatively impact families with children under the age of 18 and, therefore, may constitute familial status discrimination in violation of the FHA under a Disparate Impact theory. The most commonly raised discrimination claim in an association context pertaining to familial status is, without doubt, related to rules and regulations concerning swimming pool use.
A. Adult-only areas for pools.
While the idea of an “adult-only” swim area or pool seems like a great idea on its face, courts have held this to be a discriminatory policy under the FHA because it has the impact of treating families with children less favorably than those without children. See, e.g., Landesman v. the Keys Condominium Owners Association, 2004 U.S. Dist. LEXIS 21746 (N.D. Cal. 2004) and Llanos v. Estate of Anthony Coehlo, 24 F. Supp. 2d 1052 (E.D. Cal. 1998).
B. Required adult supervision at pools.
While virtually every swimming pool in the United States seems to have a sign posted somewhere near the pool that reads “adult supervision required at all times”, courts have invalidated requirements for the supervision of minor swimmers under the premise that safety judgments about a child’s swimming ability are to be made by an informed parent, not some entity. See e.g., Iniestra v. Cliff Warren Investments, Inc., 886 F.Supp. 2d 1161 (C.D. Cal. 2012) and Llanos v. Estate of Anthony Coehlo, 24 F. Supp. 2d 1052 (E.D. Cal. 1998).
This article only touches upon fair housing laws and principles and their application to community associations and is not meant to be exhaustive in nature. There are many other issues that have not been discussed (such as accessible design and construction), along with other analyses and pitfalls that can exist in an association setting as it relates to the FHA, and each will be dependent upon the specific facts and circumstances presented at any given time as well as the current status of the FHA and other applicable laws.
Finally, it cannot be stressed enough that associations should confer with counsel as soon as possible when triggering issues arise — this will give the association the best chance at compliance and will serve to lessen the risk that the association will face a potentially devastating finding as it relates to a violation of the FHA.
by Edward Hoffman, Jr., Esq.
Originally published in the September/October2015 issue of Community Assets magazine. Portions of this article also appeared in a prior article written by the author, “All’s Fair”, in the July/August 2014 issue of Common Ground magazine (beginning at p. 41), Volume XXX, Number 4, published by the Community Associations Institute, 6402 Arlington Blvd., Suite 500, Falls Church, VA 22042.