Legal

45 Years of Fair Housing for All in Virginia 1972-2017

A community association rule that says, “Adults only in the pool after 8 p.m.” An association board of directors re­fuses to designate a handicapped parking space for a physically disabled residents’ ex­clusive use…An association rule that says, “No playing on the common areas.”

Unfortunately, these are not examples of housing discrimination from a distant past. They are real-life Virginia cases within just the last five years—serving as a reminder of the need to remain vigilant about everyone’s rights and responsibilities under fair housing law.

On April 7, 2017, the Virginia Fair Housing Office commemorated the 45th Anniversary of the passage of the Virginia Fair Housing Law (VFHL)¹. Enacted in 1972—just four years after passage of the federal Fair Hous­ing Act—the VFHL guarantees fair housing opportunities for all Virginians, regardless of race, color, religion, national origin, sex, elderliness, familial status, or handicap (dis­ability)². The VFHL is substantially equiv­alent to the federal Fair Housing Act which allows the federal Department of Housing and Urban Development to refer most com­plaints of housing discrimination to Virgin­ia’s Fair Housing Office to be investigated.

Our statute declares it is the official policy of Virginia “to prohibit discriminatory practic­es with respect to residential housing by any person or group of persons, in order that the peace, health, safety, prosperity, and general welfare of all inhabitants of the Common­wealth may be protected and insured.”

How do we work toward this goal? The Vir­ginia Fair Housing Office, located at the De­partment of Professional and Occupational Regulation (DPOR), investigates complaints of housing discrimination. Cases alleging VFHL violations may be resolved through conciliation, a form of mediation offered by DPOR’s Alternative Dispute Resolution (ADR) section. Investigations occur simul­taneously with the conciliation process. If a case cannot be resolved through the concil­iation process, the Fair Housing Board (or Real Estate Board, if it involves real estate licensees or their employees) will review the evidence collected during the investigation and determine if “reasonable cause” exists to believe discrimination occurred.

If the Board finds “reasonable cause,” and conciliation efforts are not successful, a “Charge of Discrimination” is issued and the case is immediately referred to the Office of the Attorney General to pursue legal action in state civil court. If the judge or jury finds that a discriminatory housing practice has occurred—or is about to occur—the VFHL provides for the plaintiff to be awarded com­pensatory and punitive damages (without limitation otherwise imposed by state law). The court may also issue a permanent or temporary injunction, temporary restrain­ing order, or other order enjoining the de­fendant from engaging in such practice or requiring such affirmative action as may be appropriate.

In addition, the Fair Housing Board oversees an education-based certification program for housing providers, and the Virginia Fair Housing Office provides training and out­reach to promote greater awareness about fair housing laws. Because ignorance of the law cannot be used as a defense to unlaw­ful housing discrimination, it is vitally im­portant for all those involved in residential housing practices to learn about fair housing requirements.

Although most of the complaints received by the Virginia Fair Housing Office involve disability or racial discrimination, those in the familial status category continue to rise, particularly in cases involving community associations. To provide context and deeper understanding, some VFHL terminology de­serves additional explanation.

Disability
To understand the meaning of disability or disabled for purposes of fair housing, Section 18 VAC 135-50-200 of the Virginia Real Es­tate Board’s Fair Housing Regulations states that the terms are synonymous with handi­cap as defined in the VFHL. The Regulation further explains that handicap means:

i. A physical or mental impairment that substantially limits one or more of such person’s major life activities;
ii. A record of having such an impair­ment; or
iii. Being regarded as having such an impairment.

Disability includes, but is not limited to, physical or mobility limitations, psychologi­cal disorders, emotional and mental illnesses, learning disabilities, and addiction recovery. Fair Housing Law requires housing provid­ers to make reasonable accommodations or allow reasonable modifications when doing so is necessary to allow a person with a dis­ability equal opportunity to use and enjoy the premises.

For purposes of illustration, consider the following actual complaints filed with the Virginia Fair Housing Office against com­munity associations or their governing boards:

  1. The complainants allege a refusal to make a reasonable accommodation and a refusal to permit a reasonable modification to their property based on disability. They allege that the respon­dents refused to respond to their request for an exception to the community pol­icy regarding types of fences and failed to allow them to install a fence on their property for their daughter’s disability. This complaint was resolved through the conciliation process with the associ­ation agreeing to the installation of the fence and public interest relief.
  2. The complainant alleges a refusal to permit a reasonable modification to his home based on disability. The com­plainant alleges the respondents refused to allow him to install a modular wheel­chair ramp on his property that was needed for his physical disability. This complaint was resolved through con­ciliation with the respondent allowing installation of the wheelchair ramp and public interest relief.
  3. The complainant alleges a refusal to make a reasonable accommodation based on his disability. The com­plainant alleges the respondent refused to paint all common area uneven sur­faces, curbs, and stairs high-contrast yellow and install “Blind Resident” signs at the front and rear gates to the prop­erty needed for his visual disability. This complaint was resolved through the conciliation process with the respon­dent agreeing to install the paint and signs where needed, and public interest relief.

Familial Status
The term familial status as defined in the VFHL means one or more individuals under the age of 18 living with: (i) a parent or other person having legal custody, or (ii) the designee of such parent or other person having custody (with the written permission of such parent or other person). Familial status also includes any person who is pregnant, or who is in the process of securing legal custody of any individual who has not attained the age of 18 years. (To be “in the process of securing legal custody” means having filed an appropriate petition to obtain legal custody of a minor in a court of competent jurisdiction).

In terms of legal applicability, the VFHL prohibits discrimination by “any person or group of persons”—meaning one or more individuals (whether male or female); corpo­rations; partnerships; associations—includ­ing community associations—organizations (e.g., labor, fair housing, or civil rights orga­nizations); governmental entities; legal rep­resentatives; mutual companies; joint stock companies; trusts; unincorporated organiza­tions; trustees; trustees in bankruptcy; receiv­ers; and fiduciaries.

Like every other category of housing pro­vider, common interest community associa­tions must avoid all unlawful discriminatory housing practices enumerated in the VFHL, which covers sales transactions, rentals, advertising, lending, and insurance. How­ever, because subsections A.2 and A.9 of § 36-96.3 are the two unlawful practices most frequently cited against condominium and property owners’ associations, they deserve particular attention from those governing, managing, and living in such communities.

Both involve the prohibition on discrimi­natory treatment in “terms, conditions, or privileges…or in the provision of services or facilities.” Board Regulation 18 VAC 135-50-90 provides as an example of such prohibited action:

“Privileges, services, or facilities” may in­clude the use of common areas, mailboxes, dumpsters, playgrounds, swimming pools, hot tubs, tennis courts, media/game rooms, fitness centers, community clubhouses, or other recreational spaces.

For purposes of illustration, consider the following actual complaints filed with the Virginia Fair Housing Office against com­munity associations or their governing boards:

  1. The Complainants allege that there are different conditions or terms of occu­pancy or facilities imposed on them be­cause of familial status. They allege that the rules and regulations are restricting activities of minors to indoor activities only. The rules and regulations for the community state, “No bikes are allowed on the sidewalks within the community. No skateboarding, skating, motorized scooters, go-carts, playing of games or similar activities are allowed in the park­ing areas, streets, sidewalks, or any part of the common elements.” This com­plaint was resolved through the con­ciliation process with the association agreeing to make changes to the rules and regulations, and included public in­terest relief.
  2. The Complainants allege that there are different conditions or terms of occu­pancy or facilities because of familial status. The rules and regulations for the community state, “After 8 p.m. will be considered adult swim time and use of the pool is restricted to residents and their guest over 18 years of age.” Specifi­cally, the Complainants were at the pool and at 8 p.m. a woman cleaning the pool asked everyone with children to leave the pool. This complaint was resolved through the conciliation process with the association agreeing to make chang­es to the pool rules and included public interest relief.
  3. The Complainants allege that the Re­spondent has a number of rules and regulations that are discriminatory toward families with children. The Complainants allege, for example, that the pool rules prohibit children from being in the pool for 15 minutes every hour, and ban young children from large portions of the pool inhibiting the Complainants and their children from equally enjoying community amenities. This complaint was resolved through the conciliation process with the asso­ciation agreeing to make changes to the pool rules and included public interest relief.
  4. The Complainant alleges that the Re­spondents discriminated against her by subjecting her to discriminatory terms and conditions of the provi­sion of services or facilities based on the Complainant’s familial status. The Complainant alleges that in April or May, her older son, then age 10, wanted to use the fitness facility. The rules in ef­fect at that time prohibited children un­der 14 from using the equipment. The Complainant also alleges that through­out the pool season both of her sons wanted to use the spa, but the rules that were in effect prohibited children under 12 from using the spa. This complaint was resolved through the conciliation process with the association agreeing to make changes to the rules and included public interest relief.

What should community associations do to avoid potential fair housing violations? The Virginia Fair Housing Office suggests the following best practices for all housing pro­viders:

  • Review and update policies, rules, ser­vices, and practices at least once a year.
  • Focus community rules on conduct, not age or status.
  • Make sure community rules are based on “compelling business necessity,” and constitute the least restrictive means to achieve the desired effect.
  • Enforce community rules equally and consistently.
  • Stay up-to-date on state fair housing laws, regulations, and official guidance.
  • Require all staff and personnel—e.g., board members, managers, reception­ists, lifeguards, security guards, main­tenance workers, etc.—attend training annually, conducted by a professional in the field of fair housing education.
  • Hold all staff accountable for learning and upholding the community’s poli­cies and procedures at all times.
  • Share information about fair housing with residents and staff on a frequent basis (via newsletters, mailings, social media, bulletin boards, meetings, and community events, etc.).
  • Remember that the Virginia Fair Hous­ing Law protects everyone . . . including YOU . . . by supporting diverse, vibrant communities.

Housing providers must study, understand, and follow fair housing requirements, be­cause illegal barriers to housing oppor­tunities—no matter how subtle, or even inadvertent—remain a reality more than four decades after the law’s passage. Com­munity associations should not fear the VFHL, but they also cannot afford to be un­aware or indifferent.

The Virginia Fair Housing Office encourages you to learn more by visiting our webpage at http://www.dpor.virginia.gov/FairHousing/, which includes detailed information about protected classes, reasonable accommoda­tions and modifications, the law and regu­lations, upcoming training seminars, and many additional resources.

If you have questions or would like to sched­ule a training session, please contact us at (804) 367-8530, toll-free at (888) 551-3247, or via e-mail at fairhousing@dpor.virginia.gov.

1§ 36.96.1 et seq. of the Code of Virginia
2The original version of the law did not include elderliness, familial status, or disability; amendments to the VFHL in the 1980s and 1990s added these protected classes.

Fair Housing Laws in Maryland & D.C.
Pursuant to State Government Article, §20-702, Annotated Code of Maryland, it is the policy of the State of Maryland to provide for fair housing throughout the State, to all its citizens, regardless of race, color, religion, sex, familial status, national origin, mari­tal status, sexual orientation, gender identity, or disability.

To learn more about Fair Housing laws in the state of Maryland, visit mccr.maryland.gov or call the State of Maryland Commis­sion on Civil Rights at (800) 637-6247.

D.C. Human Rights Act
In accordance with the District of Columbia Human Rights Act of 1977, as amended, the District of Columbia and housing pro­viders cannot discriminate on the basis of (actual or perceived):
To learn more, visit ohr@dc.gov or contact the District of Columbia Office of Human Rights at (202) 727-4559

  • Race
  • Color
  • Sex (including pregnancy)
  • National Origin
  • Religion
  • Age
  • Marital Status
  • Personal Appearance
  • Sexual Orientation
  • Gender Identity or Expression
  • Familial Status
  • Family Responsibilities
  • Matriculation
  • Political Affiliation
  • Disability
  • Source of Income
  • Victim of an Intra-Family Offense
  • Place of Residence or Business

By Lizbeth T. Hayes
Liz is the director of the Virginia Fair Housing Office at the Virginia Department of Pro­fessional and Occupational Regulation, where she has served since 2005. She directs and supervises all fair housing investigations while overseeing and managing the Virginia Fair Housing Office. Prior to this position, she had served as the investigative supervisor and the fair housing field investigator, both for the Virginia Fair Housing Office.

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