Liability

Could Your Community Be Deemed a “Hostile Environment?”

Your community association may now be liable for the discriminatory ac­tions of residents who harass or create a hostile environment for other residents. A new HUD regulation that went into effect on October 14, 2016 places new burdens on condominiums and community asso­ciations, which should take steps to protect themselves. This is a scary proposition for associations when you consider the fact that neighbors have disputes with each other all the time. It is not hard to imagine a scenar­io where an argument between neighbors could turn into a claim against your associ­ation for discriminatory harassment. An as­sociation can no longer afford to stay out of such disputes.

What is hostile environment harassment?

The new rules define hostile environment harassment as unwelcome conduct that interferes with the availability, sale, rental, or use or enjoyment of a dwelling and oth­er housing-related activities. The conduct could be a single incident or several occur­rences over time. If a reasonable person would find that the conduct is severe or per­vasive enough to create a hostile environ­ment, then HUD is likely to find that there has been discriminatory harassment.

Could your association have acted to stop the conduct?

That becomes the key question. The new rules make an association liable for fail­ing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the association knew or should have known of the discriminatory conduct or harassment and had the power to correct it. For example, if one resident is harassing another resident in the communi­ty parking lot on the basis of national origin, the association can be held responsible if it doesn’t take immediate action to end the discrimination. In the past, an association’s exposure to fair housing discrimination claims was generally limited to a claim that an association’s policy was discriminatory or that it failed to provide a reasonable ac­commodation to a disabled resident. Now, an aggrieved party does not even have to complain to the association for it to be liable, if it knew or should have known about the harassment. So, in the above example, if the association’s parking lot attendant, commu­nity manager, or a board member observes the harassment and the association takes no action to end the discrimination, the ag­grieved party could have a claim against the association.

How can your association protect your community?

If a dispute results in hostile environment harassment, the association must take prompt action and use any authority it has under its governing documents to end the harassment. This can include sending viola­tion notices, conducting hearings, imposing fines, suspension of privileges, and litiga­tion to seek injunctive relief against the ha­rasser. HUD recommends that community associations educate their board members, managers and employees about the types of conduct that could result in discrimination claims under the Fair Housing Act. Asso­ciations should enact anti-discrimination policies and act promptly to address any complaints. Associations should use the enforcement provisions in their governing documents to correct and end discrimina­tory conduct, and mediate disputes between residents.

If your condominium or community associ­ation has not already considered the impli­cations of these new regulations, the time to act is now. For more details about the new HUD Fair Housing regulations or to discuss how to develop appropriate policies for your association, please contact your association’s attorney.

 

By Judyann Lee, ESQ.
Judyann is an attorney with McMillan Metro, P.C. in Potomac, Maryland. For more than a decade, Judyann has represented common interest communities in Maryland, D.C., and Virginia.”

 

 

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