The Secretary of Housing and Urban development cites significantly rising fair housing act complaints filed in its office this year. That being said, it is important for board members and property managers to be impartial when dealing with issues that come up during normal association operations.
Under the FHAA (Fair Housing Act Amendments of 1988), it is unlawful to discriminate in any activities relating to the sale, rental or use of a dwelling because of race, color, religion, sex, handicap, familial status or national origin. Most often, in the case of a community association, the common issues arise in the form of handicap and familial status. Board members should refrain from using foul or threatening language, and being aggressive toward any owners or renters within the community. Although you may be extremely upset, be sure to take a deep breath and stop before speaking or gesturing something that could land the association in trouble with fair housing issues.
Many associations try to implement rules and regulations that limit the use of the common elements by children. Where an association can get into trouble is by failing to realize that children have the same rights of access to the common areas as other residents that are adults.
It is important to base a rule on a behavior. Behaviors can be monitored in a non-discriminatory fashion. Restrictions must be based upon safety concerns, behaviors, and specific conduct. Often, it is about using the right words and being reasonable. There are legitimate safety concerns when it comes to common elements such as pool use or fitness equipment use. In those instances, it is important to impose age limits or require adult supervision for those who are under a particular age.
An association in northern Ohio had a rule that banned infants and toddlers from the association’s swimming pool, specifically children under the age of three. The association also banned swimming diapers for sanitation reasons. One of the owners filed a fair housing complaint against the association, alleging that the board was singling out owners with families.
A viable way to avoid this would have been to limit pool use to any individual who is incontinent, as opposed to prohibiting diapers and imposing age requirements.
An owner with a handicap is entitled to full use and enjoyment of his/her home, which may require a reasonable accommodation or modification to some common elements. The association has the duty to investigate whether the documentation supports that the individual is handicapped and that the
accommodation will aid the person’s handicap, and will improve their ability to use and enjoy the property. In most instances, it is the responsibility of the owner to front the expenses for the acommodation.
Reasonable accommodations can only be made if the resident fits the definition of handicapped and the accommodation is directly related to the handicap and is necessary for use and enjoyment of the premises. There may be some cases where the handicap is either undocumented or unverifiable without the written opinion of a doctor.
For example, residents are prohibited from having dogs on the premises. After enforcement proceedings begin to remove a pet, the owner requests a reasonable accomodation for an emotional support animal. After requesting information from the owner’s physician, the physician failed to answer all questions on the association’s questionnaire, and neglected the association’s requests for further information. In the end, the owner was denied her request to keep her dog as an emotional support animal, as she was unable to find a physican to corroborate her need for the animal.
Most fair housing violations related to race or sex are obvious to spot. However, where many associations get into trouble is the failure to act when violations do occur. For example, a female resident in an association was victim to consistent racist and sexist harassment from a neighbor. The association’s governing documents provided for fines and enforcement to combat the activities of her harassing neighbor, however, the association decided to stay out of it. The association and the harassing neighbor were then sued by the owner, as the association’s failure to act caused a hostile housing environment.
Again, discrimination with regard to religion is usually obvious. However, problems may arise when owners wish to bring perform religious rites on common areas. Members may practice their religion in common areas as long as these members continue to follow association rules and regulations.
For example, a religious group requested permission to perform a mass baptism in the association’s pool. However, the request included plans that specifically violated association rules. The baptism was to be done in flowing robes, when the association required that all persons in the pool wore proper swimming attire. In addition, each resident was to have a maximum of six guests in the pool area at a time, and the baptism was for 40 people. The association was able to deny this request, as it was in violation of the rules and regulations.
Issues to Consider
Although complaints to the association are inevitable, it is important to tread carefully when dealing with a fair housing issue. Even if a board member or property manager has not committed a fair housing violation, the mere filing of a complaint can result in time-consuming investigations and attorneys’ fees, so be sure to deal with everyone in a calm and even manner. If you have conversations with members, be sure to document what was said so you have some sort of evidence that a violation did not occur. Keep copies of any correspondence to or from the owner to support the association’s position. In several cases, it is found that no fair housing violation occurred, however, later on, it is found that board members retaliated against the owner for filing the complaint, which in itself is a fair housing violation.