Board Rules for Fair Housing

Operating rules, community rules, pool rules, clubhouse rules or parking rules. Whatever you call them, they can promote peace and quiet, safety and harmonious relations. These rules enhance the rental property’s appeal, reduce management problems and maintenance costs and give fair warning to residents of what conduct will lead to an eviction.

HOA rules may not discriminate against families with children. Boards also have a duty to change or make reasonable exceptions to rules and policies when necessary to accommodate persons with disabilities.

Some HOA rules can seem unnecessary and intrusive to residents. These are the ones that put a board most at risk. A resident’s complaint about a rule is an urgent signal to re-examine it. However, sometimes you will not have this signal. The resident is not required to complain about a rule before filing a lawsuit.

Rules Affecting Children

Too often a board will adopt rules to make the property more livable and wind up accused of violating fair housing laws. Discrimination against families with children can often be hard for a board to recognize. The board’s belief in fair housing and intent not to discriminate will not protect against a lawsuit. Courts look at the impact of HOA rules and other policies to see if they restrict families with children more than others.

Rules which on their face apply to everyone, not just children, are less likely to be challenged. However, even rules that seem neutral can be discriminatory if they affect children more than adults. These rules are said to have a “disparate impact” on a protected class. However, the impact on the protected class cannot be assumed or guessed. Normally a disparate impact case requires the testimony of an expert on statistics to show that the rule has an unintended discriminatory effect. Pfaff v. U.S. Dept. of Housing and Urban Development 88 F.3d 739, 746-747 (9th Cir., 1996).

To win a fair housing claim, the resident only has to show that a rule treats children, and thus families with children, differently and less favorably than households having only adults. Once a plaintiff proves the rule affects children more than adults, it is up to the board to show a nondiscriminatory purpose for the rule. Some courts require proof that the rules are the “least restrictive means” to achieve a “compelling business necessity.” Other courts ask only that the reason for the rule be “legitimate” or “reasonable.” Pfaff, supra, 88 F.3d at 747, n. 3.

Defending Rules That Affect Children

Defending a rule that affects families with children is not easy. Courts are often reluctant to accept a board’s opinion of what is a business necessity or even what is “reasonable” without supporting proof. Usually, the testimony of an expert such as an engineer or other professional will be needed. A board’s testimony that allowing larger family groups with children will overburden the hot water system will not succeed, but an engineer’s report explaining why a new system costing $1.63 million is needed if the number of occupants increases could justify the board’s position. United States v. Weiss 847 F.Supp. 819 (D. Nev., 1994).

Soon after passage of the federal Fair Housing Act Amendments of 1988, which made discrimination against families with children or against the “handicapped” illegal under federal law, the U.S. Department of Housing and Urban Development issued regulations interpreting that law. HUD explained its interpretation in a “Preamble to Final Rule,” published at 54 Fed. Reg. 3232 (Jan. 23, 1989). Discussing rules that affect children or the disabled, HUD said:

“The Department does not believe that, in enacting the Fair Housing Amendments Act, the Congress sought to limit the ability of landlords or other property managers to develop and implement reasonable rules and regulations relating to the use of facilities associated with dwellings for the health and safety of persons.”

Although courts do not express it precisely this way, the touchstone seems to be that rules which are reasonable and which are aimed at promoting the safety of children or others are legal, even if they apply only to children. Rules only for children which are aimed at noise, annoyance of other tenants or property damage are less likely to be upheld.

Bad Rules and Good Rules

A federal judge in Los Angeles gave specific examples of rules which are or are not illegal. United States v. M. Westland Co (C.D. Calif., 1994) 3 Fair Housing-Fair Lending Cases ¶ 15,941 decided there was no reason to prohibit children from using the billiards room or the shuffleboard facility. The rule applied both to children supervised by an adult and to unsupervised children. The court did not say if it would have approved a ban only on unsupervised children.

The board required that an adult always supervise all children who are outside the mobile home. Another rule said children using the swimming pool must be accompanied by an adult. The court simply said the first rule was not justified. The pool rule was rejected since the court saw no reason why a 17-year-old certified lifeguard could not swim alone. Safety in the pool did not require so restrictive a rule.

The court also struck down the board’s rule against children using the Jacuzzi. There the court agreed that health concerns about prolonged exposure of young children to hot water could justify some restriction. The court suggested a warning of the risks, a rule requiring adult supervision or an age cut-off would be less restrictive ways to deal with the health problem.

The court did uphold the board’s rule against children who are not toilet trained using the swimming pool. The court approved a rule that parents, guardians or any adult in charge of a child are responsible for control and discipline of the child. The court also approved a rule requiring adult supervision of any child under age six when the child is riding a bicycle in the community.

A Rule Both Bad and Good

Another Los Angeles federal judge found an apartment rule was both bad and good. In Fair Housing Congress v. Weber 993 F.Supp. 1286 (C.D. Cal., 1997), the court considered this rule:

“Children will not be allowed to play or run around inside the building area at any time because of disturbance to other tenants or damage to building property. Bikes, carriages, strollers, tricycles, wagons, etc., must be kept inside units or in the garage area and not left outside.”

The first sentence of this rule was illegal because it applied only to children and not adults. The rule was intended to prevent disturbances and property damage, not to promote safety. A better rule would stop everyone, not just children, from running, playing or engaging in other activities that disturb other tenants or damage property. The court held that the second sentence of this rule was a legal safety measure that applied to everyone.

Exceptions to Rules

Normally, apartment rules should be applied consistently and fairly to all. However, a board must change or make reasonable exceptions to rules and policies when necessary to allow a disabled person to live and use the unit and other facilities. 42 U.S.C. § 3604(f). Wait for a request. The board should know of a resident’s disability if the resident tells him about it. However, a board may not ask a resident whether the person is disabled, what kind of disability he or she has or how severe the disability is. 24 CFR § 100.202 (c). California Government Code § 12955 (b).

A board may not ask whether a handicapped applicant can live without assistance or requires treatment or medication. Cason v. Rochester Housing Authority 748 F.Supp. 1002 (WDNY, 1990). A board may not assume that a person is handicapped even if they are in a wheelchair; nor that they are not disabled even if they appear to be able to function normally. However, when a resident asks for a change or exception to a rule because of disability, a board may request documentation or invite the resident to engage in a “dialogue.” Jankowski Lee & Associates v. Cisneros 91 F.3d 891 (7 Cir., 1996). If the request for an accommodation because of disability seems necessary and reasonable, approve it. If in doubt, seek legal advice.

Fair Housing Compliance

Operating rules can produce fair housing litigation by themselves. Rules that apply only to children may be illegal statements which express an unlawful preference. 42 U.S.C. § 3604(c). The rules can also have a discriminatory impact, even without any intention by the board to discriminate. More often, however, the rules come into question during the investigation of another fair housing problem. Agencies investigating fair housing complaints look to see if the board has shown a pattern of discrimination. One way they do this is to look at rules.

Any complaint from tenants or applicants that suggests unequal treatment of protected groups must be taken seriously. A landlord should respond promptly, fairly and with concern for fair housing issues.