Community associations, like others operating in real estate and related professions, are subject to fair housing laws based on all protected classes and prohibitions covered. As the number of communities increases, so does the likelihood that an association will be the recipient of a fair housing complaint. Complaints can be costly both in terms of time and money and monetary payments can be significant. However, situations that give rise to complaints when anticipated, recognized and handled quickly and appropriately, can avoid or minimize the impact and result in an amicable resolution. It is, therefore, important that those acting on behalf of associations, including board members, management companies, and employees, familiarize themselves with fair housing laws (persons, entities and actions covered) and the rights and responsibilities of residents and management. Knowing the law informs decisions and dictates how to respond appropriately.
Knowledge and a willingness to engage in a productive dialogue early to address disputes are both key to minimizing disagreements and resolving situations amicably.
Federal Fair Housing Law prohibits discrimination based on race, color, national origin, religion, sex, familial status (families with children under the age of 18), and disability (physical and mental). Fair housing laws also protect victims of harassment (neighborhood or sexual). Retaliation against anyone who files or participates in the investigation of a fair housing complaint also is covered. This provision applies, even if the complaint results in a determination that no violation has occurred. State and local fair housing laws may encompass additional protections, and the length of time allowed to file a complaint may differ by jurisdiction. (Contact the local human rights agency in which the property is located for information.)
The most common complaints filed against community associations involve familial status or disability related issues, and to a lesser extent, harassment. Familial status complaints typically involve discriminatory practices and different treatment, particularly rules that deny or restrict the use of facilities to children, or that send messages viewed as discouraging families with children from living there. While its legitimate to consider health and safety issues when formulating regulations, it is important to consider the objective, who is impacted, the justification for the rule, if there are potential discriminatory effects and, if so, to reevaluate whether to implement the rule, or consider if a less discriminatory alternative is available. Using neutral language, or eliminating or revising restrictions, can help minimize conflict and resolve matters amicably.
In addition to protections afforded to all protected classes, people with disabilities are entitled to additional protections, specifically, the right to request a reasonable accommodation (change in a rule, policy, or practice) or reasonable modification (structural change) needed to enjoy full use of a residence, available facilities and amenities. The primary reason association representatives find themselves in conflict with residents is a lack of knowledge of fair housing laws. This is particularly true regarding requests for reasonable accommodations or modifications. Contributing factors include a failure to understand what constitutes a disability, who qualifies, protections offered, uncertainty regarding what qualifies as “reasonable” or “unreasonable,” who is responsible for costs involved, and confusion regarding information that can or cannot be requested. Important considerations include an absence of policies in place to respond to requests, and an unwillingness to engage in an interactive dialogue, or discuss alternative options when a request does not qualify as “reasonable.”
Harassment often is not recognized as a fair housing issue and is particularly challenging for associations. Fair housing laws forbid any person or group, including neighbors, from harassing residents, prospective residents, or visitors based on their membership in a protected class.
Sexual harassment in housing (unwanted sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature) also is prohibited. Board members who are made aware of, or should have known about any alleged harassment, neighborhood or sexual, and who have authority to act, are required to take prompt action to stop the behavior. Failure to do so can have serious legal ramifications. (Harassment that includes threats and violence is criminal and should be reported to the police.)
Representatives of community associations are often remarkably uninformed about fair housing laws, their responsibilities or the extent to which their decisions have fair housing implications. The ramifications for themselves and the residents they serve can be significant in terms of both legal exposure and financial penalties. However, as illustrated above, there are steps associations can take to reduce that exposure, address conflict and resolve issues amicably.
By Margaret S. Squires
Margaret Squires (Margot) is a Human Rights Specialist and serves as Coordinator for Fair Housing Programs with the Human Rights Division of the Fairfax County Office of Human Rights and Equity Programs, where she helps coordinate the agency’s fair housing education and outreach activities. Ms. Squires previously served as a research associate with the Center for Responsible Lending working on fair-lending issues, as a fair housing investigator with the U.S. Department of Housing and Urban Development, and as an adjunct faculty member teaching economics at several colleges and universities. She received an M.A. in Economics from the University of Wisconsin-Milwaukee and a B.A. in Economics from Northwestern University.