J and N Realty Blog posts about Fair Housing. Homeowners Association Management services to HOAs in and around Los Angeles.

Current Trends in the Fair Housing Act

Increasingly, community associations are faced with residents’ requests for both “accommodations” and “modifications” under the Fair Housing Act. Title VIII of the Civil Rights Act of 1968, a/k/a The Fair Housing Amendments Act, located at 42 U.S.C. §3601 et. seq. (1968), was enacted by Congress as a means of preventing housing discrimination based upon race, color, religion, sex and national origin. In 1988, Congress enacted the Fair Housing Amendments Act (FHAA) codified at 42 U.S.C. §3602 (1988), which expanded the scope of the Act to prevent discrimination based upon “familial status” and “handicap”.

One of the fundamental policy considerations in expanding the FHAA to include handicapped persons was to prohibit practices that restrict the choices of individuals with disabilities to live where they wish or that discourage or obstruct those choices in a community, neighborhood or development. The FHAA requires community associations, as a “housing provider”, to make reasonable accommodations to an association’s rules, policies, practices or services and allow modifications to the residential premises or common property. The single most requested “accommodation” is an exception to pet restrictions. There are other accommodation requests frequently encountered such as providing a closer assigned/handicap parking space, making exceptions to rules requiring packages to be delivered to the office or that rent be paid in person and requests for “caretakers.”

“Modification” requests involve desired changes to the interior or exterior of a dwelling and/or the common property. Some of the most prevalent modification requests include adding grab bars to a shower, installing a chair lift, installing an elevator, or installing a pool lift, to name a few.

How does a community association know when it is required to grant a requested accommodation or modification? The first step is to determine if the requesting party is handicapped as that term is defined under the FHAA and your State’s Fair Housing Act.

Definition of “handicap”

The definition of what constitutes a “handicap” is found at 42 U.S.C. 3602(h), which states, “‘[h]andicap’ means, with respect to a person-(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such impairment, or (3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance …. ”

“Major life activities” include such things as seeing, hearing, walking, talking, breathing, resting, sleeping, caring for oneself, reading, learning, concentrating, and working. This is not an all-inclusive list. “Substantially limits” suggests a person is unable to perform at least one of these activities in the same manner as an average person in the general population would be able to and/or the ability to perform the activity is significantly restricted. This determination is extremely fact specific and must be evaluated on a case-by-case basis. What might be considered a disability in one case, may not be considered a disability in another.

The Code of Federal Regulations, at 24 C.F.R. 100.201, defines the term handicap and expressly provides certain conditions that are considered a handicap, and some that are not, as a matter of law.

Handicap means, with respect to a person, a physical or mental impairment which substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment. This term does not include current, illegal use of or addiction to a controlled substance. For purposes of this part, an individual shall not be considered to have a handicap solely because that individual is a transvestite. As used in this definition:

(a) Physical or mental impairment includes:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or

(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.

In addition, over the years, the courts have found numerous medical conditions (whether physical or mental) to be a disability entitled to protection under the FHAA. See Burgess v. Alameda Housing Authority, 98 Fed. Appx. 603, 606 (9th Cir. 2004) (finding that allegations that plaintiff is “often sick” and at times “unable to do much of anything” sufficient to qualify her as disabled under the FHAA); Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46-48 (2d Cir. 2002) (recovering alcoholics residing in special supportive groups are held to be “handicapped” under the FHAA); Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1041, 1045, (6th Cir. 2001) (holding tenant suffering from schizophrenia and depression has a “serious mental illness” and therefore, considered to be covered by the FHAA); Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 599 (4th Cir. 1997) (holding people suffering from Alzheimer’s and other forms of dementia considered handicapped under the FHAA); Radecki v. Joura, 114 F.3d 115, 116, (8th Cir. 1997) (concluding depression can be a handicap pursuant to the FHAA); Human Resource Research and Management Group, Inc. v. County of Suffolk, 687 F. Supp. 2d 237, 252-53 (E.D. NY. 2010) (stating that individuals recovering from alcoholism, drug addiction, or other substance abuse are disabled under the FHAA); Boston Housing Authority v. Bridgewaters, 898 N.E.2d 848, 857 (2009) (determining that individual with mental impairment substantially limiting his ability to work was disabled under the FHAA); Elmowitz v. Executive Towers at Lido, LLC, 571 F. Supp. 2d 370, 376-77 (E.D. NY. 2008) (finding plaintiff that suffers from bipolar disorder, depression, and social anxiety which impaired his ability to work was sufficient to show he is disabled under the FHAA); Dr. Gertrude A. Barber Center, Inc. v. Peters Tp., 273 F. Supp. 2d 643, 651 (WD. Pa. 2003) (stating that mentally retarded individuals qualify as “handicapped” under the FHAA); ReMed Recovery Care Centers v. Township of Willistown, Chester County, Pa., 36 F. Supp. 2d 676, 683 (E.D. Pa. 1999) (holding brain-injured persons qualify as handicapped under the FHAA); US. v. Massachusetts Indus. Finance Agency, 910 F. Supp. 21, 26, (D. Mass. 1996) (concluding that emotionally disturbed adolescents may, in certain situations, qualify as handicapped under the FHAA); Cleveland v. Policy Management Systems Corp., 526 US. 795, 797, 119 S. Ct. 1597, 143 L. Ed. 2d 966, (1999) (suggesting that persons who qualify for Social Security Disability Insurance benefits would generally meet the ADA’s definition of disability); Dadian v. Village of Wilmette, 269 F.3d 831, 837-38 (7th Cir. 2001) (finding that osteoporosis that substantially limits ability to walk is a handicap for purposes of the FHAA); Shapiro v. Cadman Towers, Inc., 844 F. Supp. 116, 118, (E.D. NY 1994), order aff’d, 51F.3d328, (2d Cir. 1995) (concluding that multiple sclerosis causing intermittent limitation of motor skills and other symptoms is a handicap under the FHAA); Trovato v. City of Manchester, N.H, 992 F. Supp. 493, 495 (D.NH. 1997) (holding muscular dystrophy that substantially limits ability to walk is a handicap pursuant to the FHAA). See Housing Discrimination Law and Litigation Database, Robert G. Schwemm, Part C.; The Federal Fair Housing Act: Substantive Coverage Chapter JJD. Handicap/Disability Discrimination (June 2011).

In contrast, the courts have held the following medical conditions, at least in these particular circumstances, did not rise to the level of a handicap under the FHAA: Wells v. Willow Lake Estates, Inc., 390 Fed. Appx. 956, 958 (11th Cir. 2010) (holding that plaintiff who merely claimed he “cannot bend or move easily” did not adequately plead that he is a handicapped individual under the FHAA); Jobst v. Camelot Village Ass’n, Inc., 94 Fed. Appx. 356, 357 (7th Cir. 2004) (receiving social security benefits does not prove that plaintiff is disabled under the FHAA); Gabbard v. Linn-Benton Housing Authority, 219 F. Supp. 2d 1130, 1133- 1141 (D. Or. 2002) (rejecting plaintiffs’ disability claims based on allegations they suffered from multiple chemical sensitivity syndrome) (ADA case); Cohen v. Township of Cheltenham, Pennsylvania, 174 F. Supp. 2d 307, 324-30 (E.D. Pa. 2001) (finding testimony about problems that abused children generally have, fails to establish that the individual abused children in this case had such impairments so as to qualify as “handicapped”); De La Torres v. Bolger, 781 F.2d 1134 (Tex. CA. 1986) (explaining that under the Rehabilitation Act of 1973,” left­handedness” is not a disability).

Requests can be made Orally or in Writing

A request for a reasonable accommodation or modification can be made orally or in writing. The Joint Statement Of The Department Of Housing And Urban Development And The Department Of Justice, May 17, 2004, Reasonable Accommodations Under The Fair Housing Act Question and Answer 12, explains that:

[A] resident or an applicant for housing makes a reasonable accommodation request whenever she makes clear to the housing provider that she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of her disability…. An applicant or resident is not entitled to receive a reasonable accommodation unless she requests one. However, the Fair Housing Act does not require that a request be made in a particular manner or at a particular time. A person with a disability need not personally make the reasonable accommodation request; the request can be made by a family member or someone else who is acting on her behalf. An individual making a reasonable accommodation request does not need to mention the Act or use the words “reasonable accommodation.” However, the requester must make the request in a manner that a reasonable person would understand to be a request for an exception, change, or adjustment to a rule, policy, practice, or service because of a disability…. However, housing providers must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the provider’s preferred forms or procedures for making such requests.

There is no requirement in the law that a formal written request be made prior to triggering a community association’s responsibility to investigate the request in a timely manner. It should be noted that a delay or failure to respond to a request can be considered a constructive denial.

Documentation Supporting the need for the Request

Associations are limited in the information they can request from a person requesting a disability or handicap related accommodation or modification. See generally Prescription Pets®, Gary A. Poliakoff, JD. and JoAnn Nesta Burnett, Esq., Common Ground, pg. 28 (Jan/Feb 2008). If the requesting party’s disability is visible, such as the need for a wheelchair, walker or cane, the association should not request any medical information concerning the disability, at least if the requested accommodation or modification is reasonably related to the obvious handicap. The Association must determine if the requested accommodation or modification will ameliorate the effects of the disability. If the requesting party is using a wheelchair and requests to install a ramp in place of the stairs leading to his unit, the nexus is also obvious and the request should be granted. If the requesting party uses a wheelchair and requests to install a visual alerting system in place of a door bell, the Association may inquire as to the nexus. Since the use of a visual alerting system does not appear to be related to the use of a wheelchair, the Association is entitled to determine how the system will ameliorate the effects of his disability requiring the use of a wheelchair. If the disability is not visible, as is the case with most mental disabilities, the Association can require documentation stating that the person suffers from a physical or mental disability, which major life activities are substantially impaired as a result, and how the requested accommodation or modification will ameliorate the effects of the disability. Id.

There are also situations in which an association may be “skeptical” of a requesting party’s need for an accommodation or modification. For example, a unit owner claims to be physically impaired and requires an elevator to get to and from her second floor unit which currently only has stairs. The person is not visibly disabled and leads an extremely active lifestyle, including playing tennis and golf, jogging five miles a day, and coordinating and attending ballroom dancing classes on the property. The requesting party provides a “physician’s statement” from a psychiatrist who shares the same last name with the requesting party, and who claims she suffers from a physically disabling condition. The association might be skeptical of the need for such an accommodation and the “physician” who wrote the statement. Based upon fairly recent case law such as Hawn v. Shoreline Towers Phase I Condo. Ass ‘n, Inc., 2009 WL 691378 (N.D. Fla. 2009) aff’d at 347 Fed. Appx. 464 (11th Cir 2009) (holding it is reasonable to require the opinion of a physician who is knowledgeable about the type of alleged disability), where an association is “skeptical” of the disability, an association, in certain cases, .may request additional medical documentation such as medical notes in order to conduct a meaningful review of the request. Lucas v. Riverside Park Condo. Unit Owners Ass’n., 776 N.W.2d 801 (N.D. 2009) (citing Hawn for the same proposition).

Notwithstanding the holding in Hawn, HUD recently filed a discrimination claim against The Philadelphian Owners’ Association (POA) concerning its process for evaluating requests for accommodation or service animals. In this new charge HUD contends that the POA required overly burdensome and invasive medical documentation before requests for accommodation would be considered. HUD also alleged that POA severely limited access to the complex’s facilities for residents accompanied by assistance animals and failed to address several instances of harassment of residents requiring assistance animals. The charge alleges that the Association’s requests for verification are improper and illegal. The charge specifically says:

Respondent POA’s pet policies discriminate against persons with disabilities in need of an assistance animal in many ways. For example, persons with disabilities who use an assistance animal may not enter the following areas when accompanied by their assistance animal: passenger elevators, lobby, lobby sitting rooms, library, art room, social rooms, swimming pool areas, fitness rooms, library, mailroom, common areas, management office or laundry room. In addition to its denials of valid reasonable accommodation requests, Respondent POA’s pet policies seek private medical information from a resident requesting an accommodation, to which it is not entitled.

It is unknown whether POA will be liable for damages, attorney’s fees and/or fines. The charge also conflicts with Hawn where a board was entitled to request verification of the requesting party’s disability and need for the accommodation; but the Hawn case did not involve claims that the association facilitated a hostile environment for persons with disabilities by failing to stop intimidation and harassment by other residents. Along the same lines, it appears the charge of discrimination against POA confers a unique duty upon the association to prevent others from intimidating and harassing the requesting party. This seems to extend a community association’s duty into areas that traditionally are, and should be, left to the individuals involved.

It is extremely important for community associations to be cognizant of the requirement that an association is required to engage in the “interactive process” which means that once a request for a reasonable accommodation or modification is received, the association must request appropriate information that will allow it to conduct a meaningful review of the request. The association must also keep the lines of communication open to obtain this information. As the Court explained in Douglas v. Kriegsfeld Corp. 884 A.2d 1109 (D.C. 2005), “[a]lthough neither statutory language in the Fair Housing Act nor its implementing regulations expressly require an “interactive process” for resolving requests for reasonable accommodations, several courts have indicated that the Act’s statutory scheme inherently imposes such a requirement.” See Jankowski Lee & Assocs. v. Cisneros, 91 F .3d 891, 895 (7th Cir. 1996) (if landlord is “skeptical of’ tenant’s alleged disability or landlord’s ability to provide accommodation, “it is incumbent upon [ ] landlord to request documentation or open a dialogue”); Jacobs v. Concord Village Condo. X Ass’n, Inc., 2004 WL 741384, at 2, (S.D. Fla. 2004); Armant v. Chat-Ro Co., L.L.C., WL 1092838, at 2 (E.D. La. Aug. 1, 2000) (quoting Jankowski Lee &

Assocs. and holding that once apprised of possible handicap, landlord has duty to inquire or investigate further); Auburn Woods I Homeowners Ass’n. v. Fair Employment & Haus. Comm’n., 18 Cal. Rptr. 3d 669, 683 (2001) (quoting Jankowski Lee & Assocs. and stating that obligation to “open a dialogue” with party requesting reasonable accommodation is part of interactive process in which each party seeks and shares information).

Generally, if the requesting party is able to establish a disability necessitating the requested accommodation or modification, the request should be granted. There are exceptions for modifications or accommodations that impose an undue financial or administrative burden upon the housing provider or fundamentally change the nature of the housing which can be considered “unreasonable.” The Joint Statement Of The Department Of Housing And Urban Development And The Department Of Justice, May 17, 2004, Reasonable Accommodations Under The Fair Housing Act Question and Answer 7.

Establishing a Prima Facie case of Discrimination

If a community association fails to grant an appropriate request for an accommodation or modification, delays in responding to such a request, denies a request based upon the person’s handicap or disability (or other protected class), the association will likely be defending a HUD complaint and/or a discrimination lawsuit. To prevail on a discrimination claim, the plaintiff must establish (1) that he or she is disabled or handicapped within the meaning of the FHA, and that the defendants knew or should have known of that fact; (2) that the defendants knew that an accommodation or modification was necessary to afford him or her equal opportunity to use and enjoy the dwelling; (3) that such an accommodation or modification is reasonable; and ( 4) that the defendant refused to make the requested accommodation or permit the requested modification. See generally Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218-19 (I Ith Cir. 2008); see also United States v. California Mobile Home Park Management Co., 107 F.3d 1374, 1380 (9th Cir. 1997); Jacobs v. Concord Village Condominium X Ass’n, Inc., 2004 WL 741384, at 1-2 (S.D. Fla. 2004).

If the plaintiff establishes with sufficient evidence a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its action. United States v. Badgett, 976 F .2d 1176, 1178 (8th Cir. 1992). If the defendant satisfies its burden, the burden again shifts to the plaintiff to prove, by a preponderance of the evidence, the legitimate reasons advanced by the defendant are a mere pretext. Id.

Damages

Damages in these cases can range from nominal amounts for first time offenders to extremely large awards for intentional discriminatory conduct. The type and amount of damages available is dependent upon whether the case is filed in federal court or before an administrative law judge. Both forums provide for injunctive relief, such as ordering the housing provider to allow for the modifications or to change rules and policies, and actual damages, such as out-of-­pocket expenses, attorney’s fees and emotional distress. The difference is the monetary award. The court may award punitive damages in whatever amount is appropriate, whereas the ALJ can only award civil penalties, which are paid to the government, to vindicate the public interest. The amount of the civil penalties is limited by the law to $10,000 for a first offense, $25,000 for a second offense committed within a 5-year period, and $50,000 if two or more offenses have been committed within 7 years of the charge. The ALJ is not authorized to award punitive damages. Compensatory damages in court actions are unlimited.

Once a violation of the FHAA is established, a plaintiff is entitled to recover damages for humiliation, embarrassment, mental anguish, emotional distress, and loss of civil rights suffered as a result of the defendants’ discriminatory acts, as well as out-of-pocket expenses associated with the injury. See Memphis Community School Dist. v. Stachura, 477 US 299, 307, 106 S Ct. 2537, 91 L. Ed. 2d 249 (1986) (holding “compensatory damages may include not only out-of-­pocket loss and other monetary harms, but also such injuries as ‘impairment of reputation … , personal humiliation, and mental anguish and suffering”‘). Out-of­-pocket expenses can include costs associated with moving and storage, alternative housing, medical and counseling bills, lost wages, and transportation. A. Heifetz & T. Heinz, “Separating the Objective, the Subjective, and the Speculative: Assessing Compensatory Damages in Fair Housing Adjudications,” 26 J Marshall L. Rev. 3 (1992).

Punitive damages can be assessed in federal courts. Punitive damages are appropriate in cases of “reckless or callous disregard for the plaintiffs rights, [or] intentional violations of federal law …. ” US. v. Hurde/brink, 981 F.2d 916, (7th Cir. 1992). Punitive damages are commonplace in fair housing cases. Asbury v. Brougham, 866 F.2d 1276 (10th Cir. 1989), ($7,500 compensatory damages awarded, $50,000 punitive damages awarded in rental housing/race discrimination case); City of Chicago v. Matchmaker Real Est., supra, (punitive damages of $102,000 awarded in racial steering case). Often, these awards are not covered by insurance as intentional conduct is excluded.

Whether intentional discrimination claims are, or can be, covered by insurance is a highly debated issue. Historically, insurance coverage for intentional torts was not permitted as a matter of public policy. This general prohibition has been applied in some fair housing cases. However, there are cases holding that insurance may cover intentional civil rights violations. Regardless of how this question is resolved, it is clear that public policy does not bar insurance coverage of unintentional violations of the Fair Housing Act nor of respondeat superior liability (i.e., of a principal’s vicarious liability for its agent’s intentional discrimination).

In the case of Windmill Pointe Village Club Ass ‘n, Inc. v. State Farm General Insurance Co., 77 F.Supp 596 (M.D. Fla. 1991), the Plaintiffs alleged intentional discrimination claims against the condominium association for willfully and maliciously calculating to discriminate against plaintiffs on the basis of race and familial status by denying or making unavailable housing within their subdivisions to families with children. Further and despite Windmill Pointe Village’s knowledge that the proposed amendments would be of no lawful force, Windmill Pointe Village knowingly and willfully made and attempted to enforce an unauthorized amendment to the Declaration of Covenants and Restrictions which sought to preclude families with children from residing in the neighborhood.

In determining no insurance coverage existed under the condominium’s insurance policy, the court explained:

In addition to the fact that the insurance contract does not appear to cover liability for the intentional wrongdoing of the Plaintiffs, there is a strong public policy against permitting coverage for intentional misconduct. Northwestern National Casualty Company v. McNulty, 307 F.2d 432 (5th Cir. 1962) (public policy prohibited construction of the policy as covering liability for punitive damages); Industrial Sugars, Inc. v. Standard Accident Insurance Co., 338 F.2d 673 (7th Cir. 1964) (contract of insurance to indemnify person for damages resulting from his own intentional misconduct is void as against public policy). The Florida Supreme Court has also recognized that: ‘[i]t is axiomatic in the insurance industry that one should not be able to insure against one’s own intentional misconduct.’ Ranger Insurance Company v. Bal Harbour Club, Inc., 549 So.2d 1005, 1007 (Fla. 1989).

Further, Florida’s public policy specifically prohibits insurance coverage for intentional acts of discrimination. In Ranger the Florida Supreme Court held that “the public policy of Florida prohibits an insured from being indemnified for a loss resulting from an intentional act of religious discrimination,” based upon the state’s long-standing policy of opposing religious discrimination. Ranger, 549 So.2d at 1008, 1009.

Because both the State of Florida and the Federal government have a strong policy of opposing racial discrimination and discrimination based on age or familial status, the reasoning of the Florida Supreme Court in Ranger would also apply to cases such as the one sub Judice in which the discrimination is based upon race and familial status rather than religion.

The Court finds that the losses for which Plaintiffs seek indemnification are losses resulting from their own intentional acts of discrimination. Consequently, for the above reasons, Plaintiffs are not entitled to indemnification or defense by Defendant State Farm. Id. at 598-99.

See also Rosenberg Diamond Development Corp. v. Wausau Insurance Co., 326 F.Supp. 2d 472, 476-77 (S.D.N Y. 2004) (suggesting that coverage of a Fair Housing Act claim alleging intentional discrimination might violate New York state public policy).

While states such as Florida do not permit insurance coverage for these claims based upon public policy, other states do permit insurance coverage for intentional discrimination claims. This is evidenced by the “standard intentional act” exclusion provisions contained in most policies. Before assuming that intentional claims are not insurable claims, one must first determine the state and/or federal law applicable to the claim and the position the courts have taken. Further, even though a claim may not be a “covered claim” for purposes of payment of awards or judgments, in many cases, the insurance policies provide defense coverage for these claims, but usually under a reservation of rights.

Reasonable Accommodations – Service and Support Animals

The FHAA does not use or define the term “service animal” or “support animal”. The Americans with Disabilities Act, as Amended, (“ADA”) and the FHAA both seek to prevent discrimination and both statutes use the same or similar language. The ADA has been litigated far more extensively, and thus, the body of case law is far more expansive. Often times, statutory definitions and case law governing the ADA are used in interpreting the FHAA. While both the ADA and FHAA used to be very similar, the acts appear to be taking divergent paths, at least as applied to “service animals”. The former definition found in the CFR defining “service animals” under the ADA was “any animal that is individually trained to do work or perform tasks for the benefit of a person with a disability.” This definition, at least arguably, encompassed “emotional support animals”. The Department of Justice (“DOJ”) adopted new definitions effective March 2011, for purposes of implementing the ADA. The DOJ’s definition of a “service animal” currently is “any dog that is individually trained to do work or perform tasks for the benefit of a person with a disability…. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” 24 C.F.R. 36.104. Based upon the DOJ’s definition, the ADA now limits service animals to “trained” dogs, and in some cases, miniature horses, and excludes emotional support animals entirely. The effect is that in places of public accommodation, you will only find service dogs or miniature horses, unless state or local governments opt for a more expansive definition of the term “service animal”.

However, the FHAA did not follow suit and HUD expressly stated that the DOJ’s definition of “service animal” will not be applied to the FHAA. See HUD’s Memo dated February 17, 2011, from Sara K. Pratt, Deputy Assistant Secretary for Enforcement & Programs, ED to All FHEO Regional Directors and Counsel, regarding New ADA Regulations and Assistance Animals as Reasonable Accommodations Under the FHA and Section 504 of the Rehabilitation Act of 1973. HUD’s Memo states that in the FHAA context, disabled individuals may make requests for reasonable accommodations for assistance “animals” of any kind, in addition to dogs, including emotional support animals, which require no training. Herein lies the quandary, what will happen when a disabled individual has a trained monkey in his home to perform specific required motor skills, such as turning on a light switch, opening a bottle or turning a door knob — things the disabled individual can no longer do? The ADA prevents the disabled person from bringing his service monkey to a restaurant or shopping mall. A city in California addressed this issue and chose to pass an ordinance to continue to use the original definition of a service animal. See Hesperia, California Ordinance No. 2011-01; The Washington Times, Rats! Justice Department Shoos service animals, by Sue Manning, Associated Press, April 4, 2011. This ordinance allowed a woman to continue to use her two trained service rats that detect, and alert her to, severe muscle spasms. It is unlikely she will receive the same treatment outside the city of Hesperia.

The single most debated impairment is the claim that a person requires an emotional support animal to overcome a mental disability such as depression and/or anxiety. These types of impairments cannot generally be seen by the naked eye and the effects of these impairments are usually not visible either. This is a double edged sword that leads to some associations denying genuinely proper requests and also contributes to associations approving illegitimate requests to avoid potential HUD complaints and/or litigation.

As with virtually every other statutory right, there will always be people who try to take advantage of the system. All too often, a requesting party submits a “physician’s note” or “prescription” that states my patient suffers from depression and requires the presence of an emotional support animal to use and enjoy his or her dwelling. Since the note or prescription lacks the information necessary for a community association to conduct a meaningful investigation, the association’s board conducts research on the physician and his or her qualifications and determines the requesting party is the physician’s mother. The physician is a rheumatologist stating that “his patient” suffers from depression requiring an emotional support animal. The community association is skeptical of the request, not only because of the relationship between the requesting party and the physician, but also because the requesting party leads a very “active lifestyle.” When the community association board requests additional information from a treating physician who practices in the area of the alleged disability, often times, the documentation cannot or will not be produced. The requesting party may file a complaint with HUD or one of the local enforcement agencies and the community association might agree to allow the animal as part of the conciliation process to avoid the horror stories related to these types of investigations. Under these facts, the requesting party is most likely not entitled to the protections afforded under the FHAA, but the Association grants the request to avoid protracted litigation and/or fines and damages.

Compare that situation to one in which a requesting party provides a community association a letter from a psychiatrist stating that three years ago, he or she diagnosed the requesting party with disabling chronic generalized anxiety disorder and as part of the treatment he or she prescribed an emotional support animal to calm the individual and allow her to focus, sleep and breathe more easily, all of which the requesting party was unable to do. The physician has no relationship with the requesting party. The community association board sees the requesting party play tennis three times a week and determines he or she must be untruthful about the extent of the alleged disability and denies the request. The requesting party files a HUD complaint. In this case, the Association decides not to conciliate or settle and a “finding of cause” to believe discrimination has occurred is issued. In this case, the request may well have been proper.

These situations can be potential landmines for community associations. In these situations, an association should request information that will establish the mental impairment and the need for the animal as delineated in the FHAA. In those situations where the documentation does not provide the necessary information to conduct a meaningful investigation of the request or an association is truly skeptical of a request, additional information should be requested. See Hawn v. Shoreline Towers Phase I. Ass’n, Inc., 2009 WL 691378 (N.D. Fla. 2009) aff’d at 347 Fed. Appx. 464 (11th Cir 2009).

Parking Accommodations

Community associations are duty bound to avoid enforcing provisions of the declaration that have discriminatory effects and must regulate the use of the common property in a manner consistent with the FHAA. Gittleman v. Woodhaven Condo. Ass’n., Inc., 972 F.Supp. 894 (D. N.J. 1997). Gittleman requested that his condominium association provide him with an accessible parking space as a reasonable accommodation under the FHAA. The condominium association denied the request based on the condominium’s master deed, which they claimed did not grant them the authority to do so. The court found that provisions in the master deed that would compel the condominium association to violate the resident’s rights under the FHAA by refusing the request for an accommodation are unlawful and enforcement of them subjects the association to liability under the FHAA.

In Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2nd Cir. 1995), Shapiro, a tenant with a disability, requested that a parking space be made available to her immediately, rather than her being placed on the waiting list, as an accommodation for her disability. The cooperative’s Board of Directors denied the request, stating that any duty to accommodate Shapiro under the Fair Housing Act did not come into play until after she was awarded a parking space in the normal course. The Second Circuit Appellate Court held that a landlord must make all reasonable accommodations necessary to afford persons with disabilities the ability to live in their apartment meaning that landlords must take affirmative steps to alter their policies, practices and procedures so that a tenant with a disability is not denied housing opportunities. Assigning her a parking space immediately rather than forcing her to wait on a list for an undetermined amount of time is a reasonable accommodation in the policy of assigning spaces on a first come, first served basis.

Recently, in the case of Astralis Condominium Ass’n v. Secretary, U.S. Dept. of HUD, 620 F.3d 62 (Ft Cir. 2010), the Court addressed a request for reasonable accommodation to have an assigned parking space. The Court cited Puerto Rico condominium law, which provides that the transfer of common elements after the construction of a property requires the unanimous consent of the condominium owners. P.R. Laws Ann. tit. 31, § 1291i(b)(4). The association argued that without the unanimous vote of the owners, the association could not grant the request. In rejecting that argument, the court stated that the association is duty bound not to enforce a statutory provision if doing so would either cause or perpetrate unlawful discrimination, citing Gittleman v. Woodhaven Condo. Ass’n, 972 F.Supp. 894, 899 (D.NJ.1997) which enunciated a similar prohibition with regard to a discriminatory master deed provision.

In other words, to the extent that state statutes or local ordinances would undercut the FHAA’s anti-discrimination provision, the former cannot be enforced. See Trovato v. City of Manchester, NH, 992 F.Supp. 493, 498, 499 (D.N.H 1997) (finding FHAA violation and enjoining enforcement of a conflicting zoning code provision). Thus, Astralis must regulate the use of common elements in compliance with the FHAA’s anti-discrimination policies, regardless of local law.

This conclusion is buttressed by two additional considerations. First, contrary to Astralis’s importunings, the language of the FHAA itself manifests a clear congressional intent to vitiate the application of any state law that would permit discrimination based on physical handicap. See 42 US. C. § 3615 (expressly commanding that ” any law of a State … that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid”) (emphasis supplied). Second, adopting Astralis’s view would create a sinkhole that would swallow the general rule and cripple the effectiveness of the FHAA. To say that private agreements under a state’s condominium statute are capable of trumping federal anti-discrimination law verges on the ridiculous. We disavow that proposition. See, e.g., Shelley v. Kraemer, 334 US. 1, 11, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (“It is … clear that restrictions on [housing] of the sort sought to be created by the private agreements in these cases could not be squared with the requirements of the Fourteenth Amendment if imposed by state statute or local ordinance.”).

Further, in the case of Sporn v. Ocean Colony Condominium Ass’n, 173 F.Supp.2d 244 (D.NJ,2001), the Court explained that the FHAA entitles a handicapped individual to “equal opportunity” to use and enjoy a dwelling. Accordingly, “an accommodation should not ‘extend a preference to handicapped residents [relative to other residents], as opposed to affording them equal opportunity’ ” and “accommodations that go beyond affording a handicapped tenant ‘an equal opportunity to use and enjoy a dwelling’ are not required by the Act.” In this case, in response to Sporn’s requests for a handicapped parking space, the Association adopted a “Handicapped Parking Policy” in December 1999. This policy provided that “handicapped parking spaces [defined as spaces closer to the Condominium entrance] shall be provided to residents” provided that any resident seeking such a space, “trade in their deeded parking space for an Association owned space closer to the building entrance.” On its face, this policy grants the same rights to handicapped tenants as it does non-handicapped residents. In order to prevail on his discrimination claim, therefore, Mr. Sporn must demonstrate that the Association’s actions toward him individually constituted a refusal to reasonably accommodate his handicap. This he cannot do. According to his own testimony, the problems that arose between the Association and Mr. Sporn began when Sporn demanded that he be provided a handicapped space but refused to give up his non-handicapped, deeded space as required by the Handicapped Parking Policy. When asked why he needed two spaces, Sporn did not offer any explanation related to his handicap, but instead responded, “because during the summertime we couldn’t get any parking for any of our family that came down.” These comments reveal that Sporn’s request for “reasonable accommodation” was really a request for accommodation coupled with a demand for special treatment. Thus, Sporn’s refusal to accept the Association’s proposed accommodation cannot provide the basis for an FHA discrimination claim.

Another issue community associations face with regard to handicapped parking is whether the association must comply with the Americans with Disabilities Act, as Amended (“ADA”). The ADA, as well as state and local government, requires a certain number of handicapped parking spaces in places of public accommodation. In the case of Phillips v Perkiomen Crossing Homeowners Association, 12 ADD 713 (E. D. Pa. 1995), the court held that a private parking lot for residents of the community association is not a commercial facility and the association is not a private entity that qualifies as a “public accommodation” under the ADA. That is not to say that every community association is exempt by virtue of being a community association. Instead, the focus is on whether the property, or any portion, is open to the public. For example, certain hotel condominiums might be classified as public accommodations, depending on the length of the rentals and the types of services the community provides. Similarly, a community association that does not fall within the parameters of a “public accommodation” might have portions of the common property that would be considered a public accommodation. If the club house can be rented by the general public, the club house would likely be considered a public accommodation subject to the parking requirements of the ADA.

As a general rule, a community association should make parking accommodations for a requesting party that establishes a disability that requires the accommodation. With few exceptions, parking accommodation cases favor the requesting party, absent an inability to establish a disability or where a reasonable alternative is proposed.

Other Accommodations

In the case of United States v. California Mobile Home Park Management Co., 29 F.3d 1413 (9th Cir. 1994), a tenant requested that the management waive a rule that requires tenants’ guests to pay a guest fee because the tenant’s guest was a care-taker. The management company denied the request. The court found that if such a fee makes the services of a visiting home attendant unaffordable to a tenant with a disability and thus denies him/her the equal opportunity to use and enjoy the dwelling then the policy violates the FHA.

Accommodations can include a change to the term “single family residence”. In Intermountain Fair Housing Council v. Orchards at Fairview Condo. Ass ‘n, Inc., 2011 WL 162401, 11 (D. Idaho 2011) the court examined an Association’s Covenants, Conditions & Restrictions (“CC&Rs”) which expressly stated “no Unit may be used as a rooming house, group home, commercial foster home, fraternity or sorority house, or any similar type of lodging, care or treatment facility.” The court referred to 24 C.F .R. 100.SO(b )(3) which prohibits “[e]nforcing covenants or other deed, trust, or lease provisions which preclude the sale or rental of a dwelling to any person because of race, color, religion, sex, handicap, familial status, or national origin.” The court explained that HUD’s regulations on discriminatory conduct under the Fair Housing Act prohibit “enforcing covenants which preclude the sale or rental of a dwelling to any person because of   handicap.” 24 C.F.R. 100.80(b)(3) (emphasis added).

“Furthermore, the allegedly discriminatory provision in the CC & R’s is facially neutral; that is, the prohibition on group homes is not expressly related to any disability and is in fact listed among several other types of group living arrangements, including commercial foster homes, fraternity houses, sorority houses, or any similar type of lodging. Where the complained of restrictive covenant is facially neutral, the plaintiff bears the burden of showing that the covenant’s enforcement had a discriminatory effect. Martin v. Constance, 843 F.Supp. 1321, 1325-26 (E.D.Mo.1994).” Plaintiff has not alleged any facts indicating that the restrictive covenant at issue has ever been enforced.

Accordingly, enforcement of a restriction on a group home is discriminatory if the underlying reason for the prohibition is designed to preclude individuals based upon a protected class.

Reasonable Modifications Necessary to Afford Handicapped Individuals full Enjoyment of the Premises

As stated above, discrimination includes “a refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.”

These requests are investigated in the same manner described above for accommodations. The same analysis for requesting supporting documentation applies equally to modifications, as well. A person must demonstrate that he/she is handicapped – suffers from a physical or mental impairment that substantially impairs one or more major life activities and the modification will allow the person to use and enjoy the premises.

Modifications may be requested in any type of dwelling; however, in a rental situation, the landlord may reasonably condition permission for the modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, (ordinary wear and tear excepted); the renter providing a reasonable description of the proposed modifications; and the renter providing reasonable assurance that the work will be performed in a workmanlike manner with all applicable building permits being obtained. It is important to note that this condition applies only to tenants and interior modifications. There are also situations in which the interior modification will not have to be restored. If a tenant widens the doorways to provide handicapped access, the doors will not have to be restored because the modification will not affect the housing provider’s or subsequent tenant’s use or enjoyment of the premises. See 24 C.F.R. 100.203 with examples; Lincoln Realty Management Co. v. Pennsylvania Human Relations Com’n, 598 A.2d 594 (Pa. Cmwlth 1991) (finding that housing provider should have allowed tile to be removed and carpet installed; allow tenant to install washer and dryer in unit; allow tenant to install a kitchen fan and laundry room exhaust fan so long as tenant agreed to restore unit to prior condition). While this case addresses the landlord/tenant situation, an association may be faced with a request for a modification to allow an exhaust fan in a dwelling or the installation of a washer and dryer with exterior ventilation and the Association may have to permit such modifications but does not have the ability to have the dwelling the restored absent a landlord/tenant relationship.

In addition, HUD’s commentary at 42 U.S.C. § 3604(f)(3)(A) states that the person making the modifications “must seek the landlord’s approval before making modifications.” Housing providers do not have an “absolute right” to reject proposed modifications or to select or approve who will do the work, but they are entitled to secure some protection against improper modifications and faulty workmanship. Thus, according to the HUD regulations, “[a] landlord may condition permission for a modification on the renter providing a reasonable description of the proposed modification as well as reasonable assurances that the work will be done in a workmanlike manner and that any required building permits will be obtained.” 24 C.F.R. 100.203. Modifications should not be conditioned upon the requesting party agreeing to insure the modification, use of a particular person or entity to perform the work or the requesting party agreeing to indemnify the community association.

Some of the most common requests for exterior common use modifications include installing elevators, chair lifts, pool lifts, ramps, and automatic doors. These types of modifications do not have to be restored or removed at the expense of the requesting resident after the requesting resident moves, dies or is no longer disabled. However, the parties should attempt to determine if and when the modification will be removed when it is no longer necessary. Interior modifications include installing grab bars, widening doorways, lowering counters and cabinets, installing ramps, lowering door handles, and replacing carpet with tile. This list is a mere sampling of the modifications that can be requested.

Just as in Gittleman referenced above, the Association’s governing documents cannot form the basis of a denial of a request for a reasonable modification. If the Association’s documents require 75% approval to materially alter the common elements, that approval is not required to allow a disabled individual the ability to install a ramp or elevator. Further, provisions in the governing documents preventing owners from materially altering the common elements cannot prevent the installation of a pool lift.

The tenant is responsible for upkeep and maintenance of a modification that is used exclusively by her. If a modification is made to a common area that is normally maintained by the housing provider, then the housing provider is responsible for the upkeep and maintenance of the modification. If a modification is made to a common area that is not normally maintained by the housing provider, then the housing provider has no responsibility under the Fair Housing Act to maintain the modification.

 

 

 

Disabled Tenants and HOA or Condo Owners

What happens when a blind tenant with a seeing-eye dog tries to move into an apartment complex with a strict no-pets policy? What if a tenant who walks with difficulty wants a reserved parking space next to her apartment, but she is at the bottom of the waiting list for spaces? What are the options for a tenant who is being evicted for minor damage to his apartment caused when he had an emotional breakdown?

In many such situations, tenants with disabilities can request a reasonable accommodation, defined by the fair housing laws as a change in the landlord’s rules, policies, or practices that is necessary to afford a person with a disability an opportunity to use and enjoy the dwelling. 42 USC §3604(f)(3)(B); Cal Govt C §§12927(c)(1), 12955. What does this mean in practice?

        Fair Housing Laws

The primary fair housing laws are the federal Fair Housing Amendments Act of 1988 (FHAA) (42 USC §§3601 et seq.) and California’s Fair Employment and Housing Act (FEHA) (Govt C §§12900 et seq.). An earlier California statute also addresses reasonable accommodations (CC §54.1(b)). Federally funded housing providers are covered by section 504 of the Rehabilitation Act (29 USC §794) as well. Looking at these laws in combination, almost all landlords or lessors are required to make reasonable accommodations. There is an exception for California homeowners who rent out just one room in the house they occupy. Govt C §12927(c)(2)(A); CC §54.1(b)(2). Condominium homeowners’ associations and mobile home parks are also obligated to make reasonable accommodations, even when the accommodation may violate an association’s covenants or affect commonly owned areas of the property. See Gittleman v Woodhaven Condo. Ass’n Inc. (D NJ 1997) 972 F Supp 894.

Because of the fair housing statutes’ broad definition of dwelling, almost anywhere that a person spends the night is covered. 42 USC §3602(b); Govt C §12927(d); CC §54.1(b)(2). This includes nursing homes (Hovsons Inc. v Township of Brick (3d Cir 1996) 89 F3d 1096), homeless shelters (Turning Point Inc. v City of Caldwell (9th Cir 1996) 74 F3d 941), and timeshares (Louisiana ACORN Fair Housing v Quarter House (ED La 1997) 952 F Supp 352).

        Analyzing the Request

Because landlords and tenant advocates often feel at a loss about how to analyze these requests for accommodations, I have developed an acronym to help remember the important factors: DANCE. The five factors in the acronym (disability, accommodation request, necessity, cost, effect) encapsulate the elements of an accommodation case as outlined by the Ninth Circuit in U.S. v California Mobile Home Park Mgmt. Co. (1994) 29 F3d 1413, appeal after remand (1997) 107 F3d 1374. The back-and-forth interaction between tenant and landlord regarding these requests often resembles a dance.

Disability. To qualify for an accommodation, a tenant must have a disability-a mental or physical impairment that limits one or more major life activities, such as walking, seeing, hearing, working, learning, or caring for one’s self. Under the federal statute, but not California law, the limitation must be substantial. 42 USC §3602(h); Govt C §12955.3. Impairments include recognized mental health conditions such as mental retardation, emotional or mental illness, specific learning disabilities, and depression. 24 CFR 100.201(a)(2). The statutes define alcoholism and past (but not current) drug addiction as disabilities. See 42 USC §3602(b); Govt C §12955.3; 24 CFR 100.201(a)(2). How long ago is “past” drug use? A year is sufficiently past, but six weeks ago is considered current. U.S. v Southern Mgmt. Corp. (4th Cir 1992) 955 F2d 914; Fowler v Borough of Westville (D NJ 2000) 97 F Supp 2d 602 (summarizing cases).

If a landlord doubts that a tenant requesting the accommodation has a true disability, the landlord should ask for verification. Hubbard v Samson Mgmt. Corp. (SDNY 1998) 994 F Supp 187, 192; Jankowski Lee & Assoc. v Cisneros (7th Cir 1996) 91 F3d 891, 895. This is an exception to the general rule that housing providers may not ask whether an applicant or tenant has a disability. 24 CFR §100.202(c). Housing providers should accept a doctor’s note that states the tenant’s condition is a disability unless there are clear reasons to question the note.

Accommodation request. The tenant must communicate to the housing provider his or her need for an accommodation of some medical condition. The tenant need not use the magic words reasonable accommodation, nor even make the request in writing (though I would always recommend that tenants do so). In one case a tenant told the manager that he did not have to get rid of his cat because he was disabled, which was found to be sufficient notice for the landlord to begin the accommodation evaluation. HUD v Dutra (HUD ALJ 1996) 1996 WL 657690.

The request must be for a change to the landlord’s existing rules or practices. If the tenant is requesting a physical change to his or her apartment, that is a modification, not an accommodation. Although the analysis is similar, in private housing the tenant must pay the cost of the modification and restore the premises at the end of the tenancy if the modification would make the apartment less marketable. 42 USC §3604(f)(3)(A); Govt C §12927(c)(1). There remains debate about when a physical change to the common areas of the complex is an accommodation and when it is a modification. Marking parking spaces as reserved for the disabled is an accommodation. See Hubbard, 994 F Supp 187; Shapiro v Cadman Towers Inc. (EDNY 1994) 844 F Supp 116.

Necessity. There must be a nexus between the symptoms of the disability and the accommodation requested. Plaintiffs have lost their cases by not making this connection clear. See Gavin v Spring Ridge Conservancy, Inc. (D Md 1995) 934 F Supp 685 (plaintiff did not explain why his disability required more storage space). The accommodation must be a necessity; The mere convenience of the disabled person is not sufficient.

Cost. If an accommodation imposes an undue financial or administrative burden on the landlord, the accommodation is not reasonable. Green v Housing Authority (D Or 1998) 994 F Supp 1253; Shapiro, 844 F Supp 116. The key word here is undue, which is different for a corporate-owned complex than for a mom-and-pop-owned fourplex. One court found that requiring a landlord to build a wheelchair ramp, costing a minimum of $25,000, was not reasonable. Rodriguez v 551 West 157th Street Owners Corp. (SDNY 1998) 992 F Supp 385; see also Judy B. v Borough of Tioga (MD Pa 1995) 889 F Supp 792, 799.

Landlords fear that accommodations could result in costs in the form of penalties from governmental authorities, such as code enforcement agencies, zoning boards, HUD, or fire inspectors. However, a landlord can ask for an accommodation from such agencies on behalf of disabled tenants and has standing to sue if he or she is harmed by the denial of the accommodation. San Pedro Hotel Co. Inc. v City of Los Angeles (9th Cir 1998) 159 F3d 470.

Effecting a fundamental change. An accommodation that would require a landlord to fundamentally alter the nature of his or her business is not reasonable. For example, a landlord who does not want to participate in government programs is not required to accept Section 8 certificates as an accommodation. Salute v Stratford Greens Garden Apts. (EDNY 1996) 918 F Supp 660, aff’d (2d Cir 1998) 136 F3d 293.

If a tenant has a disability, has made an accommodation request, and has demonstrated that the accommodation is necessary, and the landlord cannot show that the accommodation would impose an undue cost or effect a fundamental change, the landlord must grant the accommodation. If the accommodation requested does not meet all the requirements (if it costs too much, for example), the landlord should inform the tenant why the accommodation was denied, so the tenant can propose an alternate (less costly) accommodation. This, then, is the accommodation dance.

        Accommodation Examples

In the eleven years that these requirements have existed, the courts have addressed only some of the potential accommodation scenarios. Because of the relatively small impact on the landlord, courts have required landlords to make exceptions to no-pet policies to allow service animals. Green, 994 F Supp 1253 (hearing-assistance dog); Bronk v Ineichen (7th Cir 1995) 54 F3d 425; see also 24 CFR §100.204(b)(1) (seeing-eye dog). This has included companion animals that provide emotional support to people with mental health disabilities. Majors v Housing Authority (5th Cir 1981) 652 F2d 454; Whittier Terrace Assocs. v Hampshire (Mass App 1989) 532 NE2d 712. California Code of Civil Procedure section 54.1 also addresses the issue of tenants with service animals.

Parking spaces are another hot topic. When a disabled person who needs a close-by space is lower on the waiting list than nondisabled tenants, who may have been waiting for years, the landlord must move the disabled person to the top of the waiting list. Shapiro, 844 F Supp 116. Not having a reserved space close by is an inconvenience for the nondisabled tenant but is often an insurmountable barrier for the disabled tenant. Jankowski, 91 F3d 891; see also 24 CFR 100.204(b)(2) (creation of reserved space).

The accommodation issue may also arise when a tenant is being evicted for behavior related to his or her disability. For example, one tenant with schizophrenia had hallucinations and hit the wall of her apartment repeatedly with a broomstick, causing minor damage. The tenant explained that the damage was caused by the symptoms of her disability and agreed to participate in a new counseling program. The court said the landlord must make an accommodation by not continuing with the eviction. Citywide Assocs. v Penfield (Mass Hsg Ct 1989) 2 FH-FL 18,079.

Tenants whose behavior seriously disturbs neighbors will be eligible for accommodations if they can show that the disturbance has stopped or will be ameliorated. Housing providers need not rent to tenants who pose a direct threat to the health and safety of others or of substantial property damage. 42 USC §3604(f)(9). However, landlords must consider accommodations for all behavior caused by a disability, even threats or violence. Roe v Housing Authority (D Colo 1995) 909 F Supp 814 (landlord must show that no reasonable accommodation would eliminate or acceptably minimize risk to others); Roe v Sugar River Mills Assoc. (D NH 1993) 820 F Supp 636 (accommodation must be attempted). However, the greater the harm caused by the behavior, the greater the assurances of change must be for the accommodation to be “reasonable.”

Any part of the application procedure, tenancy, or eviction process can be the subject of a reasonable accommodation request. Although the statutory language refers to accommodations that allow the tenant to “use and enjoy the dwelling,” accommodations have been considered valid even when a tenant is moving out of an apartment. Courts have sanctioned accommodations such as releasing a tenant from a lease early (Samuelson v Mid-Atlantic Realty Co. Inc. (D Del 1996) 947 F Supp 756) or postponing an eviction action (Anast v Commonwealth Apts. (ND Ill 1997) 956 F Supp 792). A tenant can bring up an accommodation request at any time in the eviction process. If a landlord knows of a tenant’s disability and need for accommodation before the tenant is physically evicted (even after notice to vacate has been given), the landlord must consider the accommodation. Radecki v Joura (8th Cir 1997) 114 F3d 115; Stephenson v Ridgewood Village Apartments (WD Mich) 1994 WL 792581.

Because accommodations depend on the specific symptoms and requirements of an accommodation, no exhaustive list is possible. For example, courts have suggested that landlords give tenants with disabilities more time to comply with fire code requirements (Schuett Investment Co. v Anderson (Minn App 1986) 386 NW2d 249), move disabled tenants to more accessible apartments (Roseborough v Cottonwood Apts. (ND Ill 1996) 1996 WL 490717), and keep sidewalks clear of snow for the safety and access of a disabled tenant (Lindsey v Nob Hill Partnership (Wis App) 1995 WL 539889).

        Litigation Strategy

Reasonable accommodation cases present a perfect opportunity for preventive work. Landlords with written accommodation policies and procedures rarely find themselves in trouble.

Within one year of an accommodation denial (42 USC §3610(a)(1)(A); Govt C §12980(b)), tenants can file administrative claims with the HUD Fair Housing Office, 450 Golden Gate Avenue, San Francisco, CA 94102, or the state Department of Fair Employment and Housing (DFEH, 800/233-3212, www.dfeh.ca.gov). These agencies investigate claims, attempt conciliation, and, if discrimination is found, proceed to enforcement-typically a hearing before an administrative law judge. The process provides ample opportunities for negotiation since the investigation stage can be quite lengthy. See Govt C §§12980 (100 days), 12981. However, unlike employment discrimination claims, there is no exhaustion requirement of administrative filing before litigation. 42 USC §3613(a)(2); Govt C §12989(a). The state agency’s power to award emotional distress damages is currently being reviewed by the California Supreme Court. Konig v FEHC (2000) 93 Cal Rptr 2d 690, review granted (June 28, 2000) No. S087843.

The statute of limitations for both FHAA and FEHA litigation is two years, although it is an open question whether the two years run from the first time the request is made or the last. The statute is tolled while the claim is with HUD or DFEH. 42 USC §3613(a)(1); Govt C §12989.1. Experience has shown that these cases are almost never resolved by a motion to dismiss because of the highly factual “reasonableness” determination required. For the same reason, summary judgment motions by defendants require strong evidentiary support that one of the necessary elements is absent.

At trial the parties must present evidence regarding the DANCE elements described earlier. The plaintiff has the burden of proving the existence of the disability and the need for accommodation. The circuit courts do not agree whether the burden of proof is on the tenant to show that the accommodation is reasonable or on the landlord to show that an accommodation is unreasonable. Compare Elderhaven, Inc. v City of Lubbock (5th Cir 1996) 98 F3d 175 (tenant) with Hovsons, 89 F3d 1096 (landlord). The Ninth Circuit has not specifically addressed this issue but has listed the required elements of a plaintiff’s prima facie accommodation case without including the reasonableness of the request. See California Mobile Home Park, 107 F3d 1374, 1380. Placing the burden on the landlord, who presumably has the best access to information relating to undue burden, would parallel the Ninth Circuit’s practice in employment accommodation cases. See Barnett v U.S. Air Inc. (9th Cir 2000) 228 F3d 1105, 1113.

If an accommodation case proceeds to judgment for the plaintiff, damages can include injunctive relief; compensatory damages, including emotional distress; and punitive damages. 42 USC §3613(c)(1); Govt C §12989.2; CC §§55, 55.1. Prevailing plaintiffs are entitled to attorneys fees.

Fair Housing Matters

Does a board’s concern over liability or fear of getting sued, allow a board to require children to be supervised?

No. Neither is a legitimate reason to require supervision. Every business in the country is fearful of these two things, but that does not mean that it can run roughshod over a person’s legal rights. By the same token, federal and state fair housing laws expressly protect the rights of families and children to be free from discrimination against children. By law, children are allowed to play outside just so long as there isn’t a compelling reason that would require supervision. A board’s personal fear of liability does not qualify as a compelling reason that would allow him to usurp a family’s federal and state fair housing rights. A compelling reason usually deals with a true, dangerous situation if the child is left alone, such as small children swimming in a pool unattended. If the board truly has a legitimate safety concern that he is trying to address, then he must take careful precautions to narrowly tailor a rule that will deal very specifically with a limited problem. For example, if the board is worried about young children drowning in the pool, then it is perfectly okay to have a rule that says, “Children under 14 must be supervised while swimming.” However, the board goes too far if, in an effort to solve this problem, he creates a rule that says, “No children are allowed to play outside at any time.” Yes, this would also solve the problem, but the rule is too broad.

Can a board refuse to allow children play outside because he is worried about liability or is fearful of getting sued?

No. Every business in the country is fearful of liability, but that does not mean that it can run roughshod over a person’s legal rights.  By law, children are allowed to play outside. A board’s personal fear of liability does not qualify as a compelling reason that would allow him to refuse to let children play outside.   One court summed it up perfectly when it ruled as follows: “Concerns that children will get hurt while playing outside, be it nicks, scratches, bumps or bruises, have been concerns dogging parents since the dawn of time.  Were such ever-present, generalized concerns deemed sufficient in and of themselves to justify outdoor use restrictions to a condominium complex, there would be little place left that such a rule would not be considered valid.   In short, the mantra of child safety cannot and is not sufficient to justify a restriction.”  This particular court recognized the fact that boards would be able to completely control the lives of children if they could simply claim that they were worried about liability.

The reality is that some board simply do not want children playing outside, so they come up with a vague justification for refusing to allow kids to play, namely, that playing is not allowed because they do not want to get sued if the child gets hurt.  This is not a valid reason to refuse to let children play outside.  Children are allowed to play outside.  The board cannot use fear of liability as an excuse to prevent children from playing. Courts are concerned about actual, real danger, not possible dangers that can occur.  For example, there is clearly a risk if children are allowed to shoot bb guns, hit hard baseballs, or throw lawn darts in the common areas, as an injury could easily occur. Obviously, a board can prohibit such activities. However, there is no such risk if children toss sponge balls, blow bubbles, play hopscotch, or play badminton. There is no risk with these activities. A manager cannot prohibit kids from engaging in such activities.

Can a Board Prohibit Teenagers From Socializing?

No. If the rule is specifically aimed at teenagers (e.g., the rule says, “No teenagers may loiter on the premises”), then the rule is illegal. The board is required to treat teenagers equal to adults. A board cannot make rules that single-out teenagers. By the same token, the board cannot refuse to allow teenagers to visit a unit, simply because the board is worried about them “causing trouble.” Teenagers cannot be singled out. They must be treated equally as adults.

Equally important is the fact that a landlord cannot require teenagers to be supervised in common areas.  Multiple federal courts have found it illegal to have rules that would prohibit teenagers from being in the common areas unless they were supervised.  A board cannot require teenagers to be supervised while in common areas.

Is it permissible to have adult-only swimming hours or Jacuzzi time?

No. It is illegal to exclude children from the pool at any time while the pool is open. A complex cannot set aside time for adults only. It is also illegal to exclude children from the Jacuzzi unless the child is physically too young to sit in a Jacuzzi. The pool and Jacuzzi must be accessible to children during the same hours that it is accessible to adults. The law does not permit boards to make separate rules for children, no matter how convenient it might be to adults. A child can only be excluded if it would clearly be too dangerous for the child to use the facility. Likewise, although boards may not want teenagers hanging out in the Jacuzzi, he cannot exclude them from such.

Does the peace and quiet of the community allow the board to prevent kids from playing outside?

No. The law requires residents to put up with reasonable noises made by children. The law expressly states that a desire for peace and quiet is NOT grounds for making rules against children.  One particular court ruled that a written rule which stated “Children will not be allowed to play or run around inside the building area at any time because of disturbance to other residents or damage to building property” violated fair housing laws.  Another court held that it was illegal for a board to exclude children from the common areas because the board felt that children were “rowdier, noisier, more mischievous and more boisterous than adults.”   Simply put, a board cannot refuse to allow children to play outside simply because they will make noise.

A frequent problem that occurs is that some residents will constantly complain to management about the noise that children make while playing outside.  In other words, they want the complex to be quiet.  The manager might feel compelled to listen to these complaining tenants and tell parents to either keep their kids inside or only allow them to play if they are quiet.  This is illegal.  Children have the right to run, play, laugh, and make noise. A board cannot insist upon a quiet complex. Children make noise. That is part of being a kid. The law requires boards and residents to put up with such noises. It is illegal to attempt to silence children so that others will not have to deal with their noise. Any rule that attempts to do so is illegal and unenforceable. As such, a board cannot prohibit children from playing hopscotch, Hot Wheels, Barbies or dolls, hand held video games, reading books, tossing soft balls, playing tag, or any other harmless game.

Another problem that occurs is that a board will tell children to go back inside their units if they are being too loud. This is illegal for a few reasons.  First, a board cannot order a child to go back inside their unit under any circumstances.  This is true even if the child was out of control or making extremely loud noises.  A child has the right not to have someone exercise control over their person. While there is nothing inappropriate about a board asking a child to calm down, the board cannot order a child to go back inside their unit. Second, children are allowed to make normal noise while playing.  As such, a board cannot stop this noise even if the noise is annoying.  Just so long as the children are not being extremely loud, they are free to make normal noise while playing.

Another problem that occurs is that a board will declare that she does not want children playing outside because there are tenants who work nights and sleep during the day.  This is not justification that would allow a board to refuse to let children play outside.  Children are free to play outside even though some residents may sleep during the day.

Skateboards, bicycles, and scooters: Can they be prohibited?

Yes and no. Generally speaking, a board cannot prohibit activities of children unless there is a compelling need to do so and the rule is not too invasive. It is not unusual for a condominium project to post rules that state that skateboards, bicycles, and scooters are not allowed. Usually, these rules are enacted to put an end to annoying kids. This is not a legal reason for such rules. The desire for peace and quiet is not grounds for prohibiting children from playing. Rather, the board can only prohibit activity if the board can show that there is a serious threat of injury if the activity is permitted to continue. Moreover, even if the possibility of injury can be shown, the rule cannot go too far. For example, if the complex has a narrow sidewalk and children have crashed their bicycles into other residents, then it may be fine to prohibit bike riding. However, the rule would go too far if it also prohibited toddler bicycles or push cars, as nobody is reasonably going to get “run over” by a toddler bike or push car.

The same thing would apply to rule that prohibits throwing footballs, baseballs or any other device. If there is a true danger present, then it can be prohibited. However, if there is no real danger, then it cannot be prohibited. For example, it would be okay to prohibit throwing hard baseballs, as a baseball could cause injury to person or property. However, it would be inappropriate to prohibit a nerf football, a sponge ball, or any other safe throwing device.

Broken Sprinklers: Can a board refuse to allow children to play in the grass because she is afraid of sprinklers getting broken?

Some boards will use any excuse to prevent children from playing.  One such excuse is that they are afraid that children will break sprinklers.  This is not a legal justification for refusing to allow children to play outside.   This is just a fake reason to keep children from playing outside.  Children are free to play on lawns.  If a sprinkler is broken, a landlord is free to bill the parent the cost of replacement, but they cannot use this as an excuse to prevent all children from playing on lawns.

By the same token, a board cannot claim that playing is not allowed because they are afraid that children will trip over a sprinkler and get hurt.  This is not a legal justification for refusing to allow children to play on lawns or outside.  One court summed it up perfectly when it ruled as follows: “Concerns that children will get hurt while playing outside, be it nicks, scratches, bumps or bruises, have been concerns dogging parents since the dawn of time.  Were such ever-present, generalized concerns deemed sufficient in and of themselves to justify outdoor use restrictions to a complex, there would be little place left that such a rule would not be considered valid. In short, the mantra of child safety cannot and is not sufficient to justify a restriction.”  This particular court recognized the fact that boards would be able to completely control the lives of children if they could simply claim that they were worried about liability.

Crying Babies

Neighbors are required to put up with the sounds of crying babies.  Federal law protects families of newborn babies.  If a board threatens to penalize a family because their baby cries too much, or cries at odd hours, then the board has violated fair housing laws.  Babies are allowed to cry at any hour, and both the board and the residents are required to put up with it.

 

 

 

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.

Discrimination Considerations of HOAs

Although homeowner associations and management companies possess good intentions when it comes to regulating families and children, they must be careful not to discriminate against families by enacting rules and restrictions that treat families with children differently. Typical rules and restrictions that are considered discriminatory include: restricting children to certain portions of an Association’s common area, the setting of age limitations on certain facilities inside the Association. Despite the fact that associations and their governing entities are private, nonprofit corporations or organizations, California State and Federal courts have applied anti-discrimination statutes such that condominium associations are bound by statutes such as the Fair Housing Act, California Government Code § 12955, and California Civil Code §§ 51-52. Under such statutes, associations cannot discriminate against families or children, unless there is a legitimate health, safety, or business reason.

In a recent federal case, Housing Rights Center, et al. v. Rivera Town Homes, et al., CV02-5163PA, the Housing Center and seven families sued a condominium association, and its property management company alleging that Rivera Town Homes discriminated against the Plaintiffs on the basis of familial status. More specifically, the plaintiffs alleged that Rivera Town Homes enforced a rule prohibiting children from playing in the Association’s common areas, which included grass covered yards and balconies. On February 12, 2003, the Federal Court issued a Consent Decree and Final Order requiring Rivera Town Homes to pay plaintiffs $130,000.00 along with repealing all rules regarding children. Rivera Town Homes also agreed to a two-year program of training for staff, the management company, and the board members.

The Plaintiffs’ claim stemmed, in part, from allegations of severe emotional distress brought on by discrimination against familial status. Such allegations were supported and endorsed by Los Angeles child physiologist Dr. Robert Caper who wrote: “Children need easily accessible outside places to play. Playing outside is an important part of the child’s developmental program to differentiate himself or herself physiologically from his or her parents. . . . Children who are cooped up exhibit signs of stress, and this, in turn, causes stress to their parents, which in turn has a direct effect on their ability to parent well, which causes additional stress to their children and so on in a vicious cycle.” In other words, children associate the discriminatory rules, enacted by Associations with their parents’ rules, which adversely affects the parent-child relationship.

Whether or not Dr. Caper’s findings are valid is irrelevant. Even though Rivera Town Homes denied all allegations referenced in the Complaint, it was ordered to pay a substantial amount of money, and it expended resources to change its CC&Rs, and to comply with the remaining terms of the Consent Decree and Final Order. The Association incurred a substantial monetary loss due to discriminatory rules and restrictions. Moreover, Housing Rights Center et al. v. Rivera Town Homes, et al. is just one example of how courts oppose discrimination against families and children and the Fair Housing Act and other similar statutes can be used against associations that overreach when attempting to control the behavior of children and families.

In another recent federal case, entitled Llanos v. Estate of Anthony Coehle, involving the designation of “family pools” and “adult areas” of the Association, the Court found that the Association=s rules which restricted children’s swimming pool access to family pools and prohibited children from playing in and around adult areas of the complex was discriminatory and violated the Fair Housing Act. The Court reasoned that such restrictions “steered” families with children away from areas in the complex where families without children were allowed to go. Therefore, unless the restriction is excepted through a good health, safety, or business reason, it will be discriminatory and illegal if such restriction discriminates against families and children by treating the latter differently.

Associations and their Management Companies should be cautious when constructing rules that concern families and children. If the restriction treats families with children different than families without children — absent a compelling reason — it will be held to be discriminatory and legal action may be taken by homeowners as well as government agencies against the association. Before drafting such rules, it is always a good idea to consult a legal professional in the area, who can help reduce the likelihood of restrictions being found invalid or discriminatory. Professional consultation will also reduce long term costs such as litigation expenses that may arise if a lawsuit is pursued by a homeowner or government agency. The bottom line is that these efforts on the front end will help to reduce the likelihood of adverse outcomes for associations such as the one in the Rivera Town Homes case.

Discrimination Against Children

All board members know the general rule:  It is unlawful for an association to discriminate against children, or to discriminate against residents on account of their minors.  The California Supreme Court first prohibited discriminating against families with children in 1982, relying on the California Unruh Civil Rights Act, in the seminal case of Marina Point v. Wolfson.

While boards and management companies understand that such age discrimination is illegal, avoiding it in one’s everyday ownership or management of a homeowners association building is not easy.  Often the printed provisions in the house rules and regulations inadvertently violate the law.

For example, ask yourself whether any of the following would constitute unlawful discrimination if included in the rental agreement or the house rules:

  1. Children using the common areas are to be under adult supervision at all times.
  2. No skateboard riding, scooter riding, jump roping, running, playing or screaming is permitted in the common areas.
  3. Children under 18 shall not use the swimming pool without an adult in attendance.
  4. Children 12 and under shall not use the swimming pool without an adult in attendance.
  5. Minors shall not use the exercise facilities in the recreation room without adult supervision.
  6. Persons 17 and under may not loiter in the common areas of the building after 10 p.m., but instead must be inside their units. What do you think?  Would any of those requirements be illegal discrimination?  Which ones?

The answer is:  All of them are likely to constitute unlawful discrimination under both Federal Law and California State Law.

The Two Major Types of

Discrimination Against Children

There are two major types of discrimination against children, namely:  those acts that intentionally discriminate and those which have an adverse disparate impact on minors.

A rule which provides that children are at all times to be supervised by an adult would constitute intentional discrimination.  In other words, the board intends that children are to be treated differently than adults when they are present at the complex.

Discrimination based on disparate impact means that even if the board’s practices were intended to be neutral and not designed to discriminate, they nevertheless have a disproportionate effect on children.  For example, a rule which provides that no person be allowed to play with Barbie dolls in the outdoor common areas of the property would obviously be disparate treatment of children (and probably of girls more than boys), because adults rarely play outside with Barbies.

Further Examples of Illegal Discrimination

Here are some less obvious examples of potential age discrimination against children:

  • A house rule which provides that scooter riding and skateboarding are prohibited on the common areas would likely result in disparate treatment.  If a case based on that rule were brought to court, and the testimony of the tenant’s expert witness demonstrated that children are much more likely than adults to ride scooters and skateboards on the common areas than adults, then the provision would likely be unlawful.  In other words, even though the landlord may not have intentionally instituted the rule to be directed at children, the impact of the rule primarily affects kids.
  • Another example is a house rule that prevents anyone from playing, running or screaming through the hallways of the building.  Almost always it would be minors, rather than adults, who run, play and yell in hallways.  A better way to phrase the rule would be to prohibit all conduct in the hallways that unreasonably disturbs the quiet enjoyment of other tenants. Concerning swimming pools, there is a surprising trap for the unwary.  California Code of Regulations, Section 65539(c) provides that where no lifeguard service is provided, a warning sign must be posted which says:  “Warning – No Lifeguard On Duty” and that “Children Under The Age Of 14 Should Not Use Pool Without An Adult In Attendance.”  

A board or management company reading that regulation might conclude, albeit erroneously, that it can lawfully promulgate and enforce a rule that children 13 years or younger are barred from using the swimming pool without adult supervision.  After all, if the State of California thinks that 13-year-olds and younger should not swim or play in a pool without adult supervision, surely that a landlord could institute and enforce such a rule.

Not true.  The law does not allow a board to impose a pool rule of adult supervision of children of any age.  That is up to the parents to decide, so say our courts.  For example, perhaps a mature 16-year-old with lifeguard training would be a better choice for supervision than an 80-year-old adult, but the teenager would not qualify under the landlord’s “adult supervision” rule.

Also, our courts point out that there are numerous children younger than 14 who can swim far better than many adults and are much less likely to drown.

A good alternative way to phrase the swimming pool rule is:  “All persons must have adequate swimming ability to use the pool or be accompanied by a person with adequate swimming ability.”

Defense To Claims of Child Discrimination

The principal defense to a lawsuit against child age discrimination is that (1) there is a compelling business necessity for the rule, and (2) the rule implemented is the least restrictive means of achieving it.

Thus, a swimming pool rule which prohibits non-toilet trained children from using the pool or babies in diapers from wading or swimming in it may be enforceable.  That is because body excrements, and in particular feces, jeopardizes the health of everyone else who uses (and sometimes accidentally swallows) the water.  The board’s compelling business interest is to protect the health of other tenants and the imposition of the rule, it seems, is the least restrictive means available.

However, even that rule is not without controversy.  In one case, an administrative law judge held that the condominium homeowners association could have implemented a less restrictive rule against children, such as:  “Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool.”  There, the judge imposed a $1,500 penalty on the HOA for unlawful discrimination against children.

Expert witness may be used to testify that even so-called waterproof clothing is not “foolproof” clothing and bodily excrements in the water are hazardous to health.  In other words, even though the diaper generally functions appropriately on a non-potty trained person (i.e., a baby or very young child), it may from time to time leak, have a defect, or otherwise be improperly worn.  Thus, it could be argued that the enjoyment of using the pool to a non-potty trained toddler wearing a customarily reliable waterproof panty is substantially outweighed by the possibility that it may fail and thereby create a health risk to many others who swim in the water.

Whatever the prohibition, if it primarily affects children, the burden will be on the board or management company to prove that the regulation it imposes is neither overly broad nor unduly restrictive.  The onus is also on the board or management company to prove that it has a compelling business purpose for the rule and that rule is the least restrictive means to achieve the intended outcome.

Money Damages for Discrimination

Substantial money damages are awardable to both adults and children for injury they suffer from unlawful child discrimination.  Such “injury” includes humiliation, embarrassment, emotional distress, inconvenience and loss of enjoyment of life.

Judges and juries in both the State and Federal Court systems are empowered to award substantial monetary damages against HOAs who discriminate against families with children even if the discrimination was merely negligent and inadvertent.  For that reason, it is not uncommon that adult residents in condominium projects (through their lawyers) demand, say, $15,000 apiece against an HOA and their children demand $7,500 each.  (Adults may sustain more emotional distress seeing their children being discriminated against than the children themselves suffer.)

Adding salt to the board’s wound, the residents’ attorney is entitled to an award of his reasonable attorney’s fees to litigate the case, which compensation may well exceed $200,000.

Problems with Insurance Coverage

In discrimination cases, insurance carriers often try to deny liability (meaning that the board will have to pay all damages itself), on the basis that the discrimination was intentional.  An insurance company issuing a general liability policy to a board or management company is not required to pay damages based on any act of intentional wrongdoing, such as intentional discrimination.

The procedure that carriers initiate to eschew liability coverage is to mail out a “cumis counsel” letter to the insured owner or company.  A “cumis” letter is correspondence that advises the recipient that he has a right to hire independent counsel (with a portion of the fees paid by the insurance company) due to the inherent conflict of interest between the carrier’s appointed lawyer and the insured.

The conflict is that if the lawyer appointed by the insurance company to defend the insured does not properly present the defense, the board’s discrimination may be found to be intentional, rather than merely negligent.  A Court’s or jury’s finding of intentional discrimination will absolve the carrier from having to pay any monetary damages, whereas a finding of innocent discrimination may compel the insurance company to pay the judgment.

After receiving the cumis letter, if the board then hires its own private attorney (typically a wise thing for the insured to do) to co-defend him along with the insurance company lawyer, private counsel will focus on and be more circumspect to ensure that any finding of discrimination is mere negligence, and therefore covered under the insured’s policy.

RECOMMENDATIONS

Often there is no clear black and white demarcation of exactly what rules constitute unlawful child discrimination and what rules do not.  Not only are boards frequently confused, often so are their lawyers, particularly with the “disparate impact” type of discrimination.

To best avoid discrimination against children, here are the recommendations to board members:

  1. Carefully review your house rules and regulations.  If there is any mention of children, either remove the reference or at least obtain approval of the provision from qualified counsel.
  2. If there is any prohibition against playing, loitering, lounging, running, bike riding, skateboarding, scooter riding, roller skating, skip roping, yelling, screaming, talking loudly or other generic activities in the common areas which might occur more frequently with children than with adults (e., adverse disparate impact against children), either remove the verbiage or obtain approval (or rejection thereof) by counsel.
  3. Have an experienced attorney practicing in that field of law review your entire house rules and regulations to ensure that they do not contain any type of child discrimination, whether intentional or inadvertent. Is the rule aimed at protecting children’s health and safety?  Rules that should really apply to everyone do not pass this test. For example, a rule banning children from acting rowdy in the common areas unfairly singles out children. The idea of banning rowdy behavior in the common areas is fine, but why not ban rowdy behavior altogether, regardless of whether it comes from children or adults?
    Also, be wary of rules that may appear to be aimed at protecting children because they are lumped in with other rules that are. For example, chances are if your building has a pool, it also has a set of pool rules, many of which protect children (for example, by requiring adult supervision below a certain age). However, a rule banning children from the pool during certain hours is probably aimed at giving adults a chance to enjoy the pool alone — not at protecting children from harm.
  4. Is the rule reasonable?  If you have answered “yes” to the first question, the rule is probably legal. However, it is possible that a rule aimed at protecting children goes a bit too far. For example, requiring all children under 18 — including high school students — to have adult supervision when using the pool is a bit far-reaching in its attempt to keep children safe.

 

Discrimination and the Federal Fair Housing Act

Introduction
At one point or another many associations have had discrimination charges filed, or threatened to be filed, against them for violations of either the Fair Housing Act or their state-specific anti-discriminatory laws.  In some cases, the discrimination is obvious. For example, an association that refuses people of a particular religious faith to use the community amenities is clearly discriminating based on religion. Alternatively, an association that enforces a restriction that prohibits residents of a particular race from living in the association would be discriminating based on race.

However, more often than not discrimination by a homeowners association occurs in a more subtle form – not by direct discrimination but by enforcing a rule, restriction, or practice that has the effect of discriminating against one of the protected categories.  Boards are often surprised when faced with a discrimination complaint, as they can clearly show that they have acted according to the strict letter of the governing documents.  However, associations are sued, and liability is sometimes found, just for that very reason: as a direct result of the association strictly enforcing the terms of its governing documents.

The consequences of discrimination, whether the board is aware it is discriminating or not, can be severe.  Therefore, it is very important for an association to be able to identify and understand the ways an association can discriminate, so it can take proactive steps to prevent such claims from happening.

This article discusses:

  • What is the Federal Fair Housing Act
  • What are the most common discrimination claims filed against associations?
  • What are some proactive ways an association can minimize potential discrimination claims?

The Federal Fair Housing Act
What is the Federal Fair Housing Act?
In 1968 Congress enacted the Federal Fair Housing Act (the “Act”), which is codified in 42 U.S.C. §§ 3601 – 3619.  The Act makes it unlawful for housing providers to discriminate based on race, color, religion, sex (including sexual harassment), and national origin. The Act was amended in 1988 also to prohibit discrimination based on familial status and disability.

The purpose of the law is to protect every American’s fundamental right to fair housing—the choices of where to live and whether to own a home, for instance—regardless of factors of race, disability, and the several other protected statuses.

What is considered discrimination under the Act?
The Act recognizes two types of discrimination: (i) discriminatory treatment and (ii) disparate impact.  Discriminatory treatment is where the victim is expressly treated differently than others in the community based on his/her protected class.  Discrimination through disparate impact occurs when a facially neutral rule has the effect of discriminating against a protected group.  Courts have applied the Act to individuals, corporations, and others involved in the provision of housing and residential lending, including homeowners associations and condominium associations.

Who enforces the Act?
The U.S. Department of Housing and Urban Development (“HUD”) administers and enforces violations of the Act.  Periodically, HUD will issue rules and guidelines explaining who is protected under the Act and how the Act is violated.

Common Discrimination Claims Filed Against Associations Under The Act

  1. Familial Status

What is discrimination based on familial status?
Discrimination based on familial status is discrimination against families in which one or more children under the age of 18 live with:

  • A parent,
  • A person who has legal custody of the child or children, or
  • The designee of the parent or legal custodian, with the parent or custodian’s written

Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18.

Essentially, if an association treats families with children differently than other residents in the community, through direct discrimination or enforcement of a rule or restriction, it is violating the Act, with certain limited exceptions.

What are typical ways that associations discriminate based on familial status?
The most common way that associations discriminate based on familial status is by denying children equal use of the common areas through a rule or restriction. As stated above the Act prohibits discrimination “in any activities related to the sale, rental or use of a dwelling because of race, color, religion, sex, handicap, familial status or national origin.”  “Use” of a dwelling in a community association also includes full use and enjoyment of any common areas or facilities.  Associations can discriminate by denying the use of the common areas such as swimming pools, clubhouses, gyms and other such amenities based on familial status.

The following are some common association scenarios involving discrimination based on familial status:

  • Adult Only Swim Time

Over the past decade or so courts have applied the Act to association pool rules and regulations, and have held that restrictions on children’s use of swimming pools, where those same restrictions do not apply to other adult residents, are considered discrimination under the Act.

Rules that establish “adults only” swim time discriminate against families with children by denying them equal access to the swimming pool.  In one case, an association had two swimming pools, and one of them had posted signs and notices allowing adults only.  The court held these “Adults Only” notices amounted to an illegal discrimination based upon familial status and ordered they be changed to “Families Welcome,” thereby prohibiting the association from barring families with children from using the pool, or limiting the use of any services or facilities available to adults, except as reasonably required for health and safety.

Other federal and state courts have similarly struck down “Adults-Only Swim Time” as discrimination based on familial status.  However, neutral restrictions that actually result in adult-only swim time are accepted (e.g., “lap-swimming” pool time has been accepted as non-discriminatory in at least one court).

  • No One Under Age 18 May Use the Pool Without Parent or Guardian

Although generally pool rules that treat families with children differently than other residents are discriminatory, one exception is if the rule: (i) is rooted in a “compelling business necessity” and (ii) constitutes the “least restrictive means” to achieve the desired effect.  For example, keeping a pool safe is certainly a compelling business necessity.  So, boards often draft rules that prohibit minors from using the pool without adult supervision.  However, the rule must be reasonably limited to achieve the purpose of protecting the safety of its residents.

One association enforced a rule that prohibited children under age 18 from using the recreational facilities without a parent or guardian.  The court found that the rule violated the Act because it was overly restrictive.  Under such a rule, even a 17-year old certified life guard could not swim alone. Less restrictive means could achieve the same safety goals by requiring persons without swimming skills to be accompanied by a person with swimming skills, regardless of age.
Another example of a safety-based rule that was found to be discriminatory is a rule that prohibited baby strollers, walkers and playpens from the pool area. The court found that a rule allowing only lounge chairs in the pool area would have accomplished the same goal.

  • Children that are Not Potty-Trained are Prohibited from Using Pool

The concern with sanitation is another compelling business necessity that is often cited as a rationale for adopting rules that limit children’s use of the pool.  However, forbidding non-toilet trained children or minors under a certain age from using the pool altogether would violate the Act because it is not the least restrictive means to achieve the goal of keeping a pool sanitary.  Instead, the goal could be achieved by requiring all non-toiled trained persons to wear waterproof pants.

In one case, HUD found that a rule prohibiting all babies and small children not fully potty trained from entering or being carried into the pool, as a violation of the Act.  HUD required the association to change its rule to the following:

Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool.

In another case, HUD addressed the issue of pool rules designed to prohibit children in diapers from using the association’s swimming pool.  An association had a rule that prohibited children under the age of 5 from using the pool.  The rule was said to be for the child’s safety and because of the “possible presence of fecal material in the pool.”

HUD rejected the association’s argument based on testimony from an environmental specialist who testified that there is no health reason to exclude children of any age from a pool and that a pool can be maintained in a healthful and clean condition, regardless of the ages of those who use the pool.  She further testified regarding incidents of human waste in pools of all adult health clubs and that there is no correlation between the age of swimmers and the sanitary level of a pool.  The association received a $7,000 fine for violating the Act.

  • No Children Playing on the Common Area

A rule that prohibits children from playing in the common area clearly treats families with children differently than others in the community.  In one case, a housing rights center and several families sued a condominium association and its property management company for enforcing a rule that prohibited children from playing in the association’s common areas.  The court issued an order requiring the association to pay plaintiffs $130,000.00 along with repealing all rules regarding children.

Although safety is often cited as the compelling business necessity for keeping children off the common area, a rule that prohibits children from playing on the common area, in general, could be found overly restrictive.  However, if the rule is written in the least restrictive means to achieve the goal of safety on the common area, the rule will likely be upheld.  For example, a court found valid an association rule that stated that children under the age of 14 must be supervised while playing in the association parking lot.  The association was able to establish that the parking lot was the only place for children to play and that adult supervision was required to protect younger kids.

Also, when adopting rules that require minors to be accompanied by others, it is important to specify “adult” supervision rather than “parental” supervision, as the latter has been found by courts to presuppose traditional family structures and thus to be discriminatory under the law.

Are there any exemptions from discrimination based on familial status?
Yes.  The Act does allow an exemption from the law for associations that follow the necessary steps to establish and maintain themselves as “Housing for Older Persons” (“HOPA”) communities. To be considered a HOPA community, an association must satisfy the following requirements:

  1. That the housing community be intended for occupancy by persons aged 55 or older;
  2. That at least 80% of the units be occupied by a person who is aged 55 or older; and
  3. That the housing community publishes policies and procedures that demonstrate its intent to qualify for the exemption.

An over-55 community that satisfies HOPA is exempted from the familial status provisions of the Act.   It does not have to allow families with children to live in the community. For more information on HOPA see HUD’s Questions and Answers Concerning the Final Rule Implementing the Housing for Older Persons Act of 1995.

  1. Disability

Provisions aimed at protecting people with disabilities were added to the Act in 1988 along with familial status protections.  An association that discriminates against people with disabilities, whether directly or by enforcing rules or restrictions which have the effect of discriminating against disabled individuals, is in violation of the Act.

What is a disability?
“Disability” (termed “handicap” under the Act) is defined under the Act as:

  1. a physical or mental impairment which substantially limits one or more major life activities,
  2. a record of such an impairment, or
  3. being regarded as having such an impairment.

The term “physical or mental impairment” includes, but is not limited to, such diseases and condition as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.

A “major life activity” is broadly construed and includes caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Note that the term disability includes being regarded as having a physical or mental impairment.  To illustrate this factor, in one case an organization attempted to rent apartments for participants in its drug and alcohol rehabilitation program. They were denied rentals and later filed a lawsuit against the association manager claiming an illegal discrimination against disabled people. The court determined that the association manager did indeed unlawfully discriminate against disabled people by refusing to rent apartments to organization participants. The court further held that people who have been perceived as being drug users or addicts do fall under the definition of “disabled,” under the Act, if they can demonstrate that they are regarded as having an impairment and that they are not currently using drugs.

Courts have been careful to limit coverage under the Act to impairments that are significant and not widely shared. In a 1994 case, a law student claimed to suffer from depression and sought coverage as “disabled” under federal law.  The court found, through the plaintiff’s own evidence, that nearly 40% of third-year law students report significantly elevated depression levels and that to interpret federal law to include this number of law students would be contrary to the purpose of providing protection for truly disabled people. The plaintiff was therefore denied coverage because she failed to meet the criteria for a disabled person under federal law.

What if the disability is not obvious? Can you request verification?
Ordinarily, an association may not inquire as to the nature and severity of an individual’s disability.  However, in response to a request for a reasonable accommodation or reasonable modification (discussed below), if the disability is not obvious an association may request reliable disability-related information that is: (1) is necessary to verify that the person meets the Act’s definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.

How do associations typically discriminate against disabled persons?
Rarely do you hear about an association blatantly discriminating against disabled individuals enacting a facially discriminatory rule or regulation against a disabled person or group.  Discrimination usually occurs in an association’s failure to exempt the disabled individual or group from a facially neutral rule that has the impact of discriminating against the individual or group.

Specifically, the Act makes it unlawful for an association to refuse to make “reasonable accommodations” in rules, policies, practices, or services, when such accommodations may be necessary to afford persons with disabilities equal opportunity to use and enjoy a dwelling.

The Act also makes it unlawful to refuse disabled persons the right to make “reasonable modifications” of their unit or common area if such modifications may be necessary to afford such person full enjoyment of the premises.
Failure to grant reasonable accommodations and modifications are two common ways that associations discriminate against associations.  Both types of discrimination will be discussed below.

What is a Reasonable Accommodation and what are some typical ways that associations fail to provide reasonable accommodations?
A “reasonable accommodation” is a change, exception, or adjustment in a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including the common areas of the association.

In order show that an accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability.  In other words, the requested accommodation must be related to the disability and assist the individual in obtaining equal use and enjoyment of the unit and common areas.

Also, reasonable accommodations are provided at the association’s cost, not the individual’s. Although typically no cost is involved in providing the accommodation, certain reasonable accommodations may cause an association to incur expenses.

Accommodation may be denied if:

  • If the request was not made by or on behalf of a person with a disability,
  • If there is no disability related need for the accommodation.
  • If providing the accommodation is not reasonable – i.e., if it would impose an undue financial and administrative burden on the association or it would fundamentally alter the nature of the association’s operations.

HUD and the U.S. Department of Justice (“DOJ”) issued a Joint Statement regarding Reasonable Accommodations under the Fair Housing Act.  This Joint Statement provided several common reasonable accommodation scenarios and guidance on when accommodations are necessary.
The following are some common association scenarios involving reasonable accommodation requests:

  • Request for Parking Spaces Near the Unit

Assigned parking spaces are one of the most commonly requested accommodations.  Typically, an association has a first-come, first serve parking policy, or the spaces are assigned exclusively to individual units, and a mobility-impaired resident wants one of parking spaces closest to her unit assigned to her exclusively.

In general, courts have indicated a tendency to require associations to free up nearby parking spaces as a reasonable accommodation for mobility-impaired people. In one case, an association was required to immediately provide a tenant with multiple sclerosis a convenient parking space, despite the association’s policy of first-come/first-served and a tenant waiting list for available spaces.

In another case, a mobility-impaired person sued an association that denied him a convenient parking space. In this instance, the association had consulted an attorney who told the association it could not assign the space without an amendment to the master deed. The association sought to have its master deed amended for this purpose, but the amendment was voted down by the association membership. The court required the association to grant the plaintiff a convenient parking space and reasoned that, despite the failed amendment attempt, the association still had the power to regulate its own common elements, including parking spaces. The court found the association had a duty to comply with the Act’s reasonable accommodation requirement by providing the plaintiff the requested space.

Also, remember that the association, not the individual, bears the cost of a reasonable accommodation.  Therefore, if the association must install signs, repaint marking, create curb cuts, etc., to provide the reasonable accommodation, the cost is borne by the association.

  • Emotional Support Pets

One very common way in which an association can discriminate based on disability is to enforce a “no pet” policy, or some other pet restriction, against a disabled person who may need the pet to afford him or herself an equal opportunity to use and enjoy the person’s unit or common areas.

A clear case of discrimination would be an association’s refusal to allow a blind person the right to keep a seeing-eye dog, as: (i) the disability is obvious, and (ii) the need for the accommodation (i.e., allowing the seeing-eye dog) is necessary for the blind person to use and enjoy the premises.

DOJ and HUD, in their Joint Statement regarding Reasonable Accommodations, provide the following example of when a reasonable accommodation from pet restrictions must be provided:

A housing provider has a “no pets” policy.  A tenant who is deaf requests that the provider allows him to keep a dog in his unit as a reasonable accommodation. The tenant explains that the dog is an assistance animal that will alert him to several sounds, including knocks at the door, sounding of the smoke detector, the telephone ringing, and cars coming into the driveway. The housing provider must make an exception to its “no pets” policy to accommodate this tenant.

The above are obvious examples of how the need for pets is necessary to afford the disabled individuals equal opportunity to use and enjoy the premises. However, the difficulty for many associations in granting reasonable accommodations to pet rules arises when: (i) the disability is not obvious, or (ii) the disability is obvious, but the need for the pet as an accommodation to the disability is not.

The disability of a person who wishes to keep an emotional support pet is usually not obvious, as the pet is often needed to assist an individual with a claimed mental impairment, rather than a physical impairment. So, the association may request reliable disability-related information that is: (1) is necessary to verify that the person meets the Act’s definition of disability, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.

The individual may be able to provide proof of the disability without 3rd party verification. For example, proof of receipt of disability benefits would be enough to show that a person is disabled.  Third party verification of a disability could come from a doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability.

However, once the association has established that the person meets the Act’s verification of a disability, the inquiry on whether the person is disabled should stop.  The association should then only seek information that is necessary to evaluate if the accommodation is needed because of the disability.

In one recent case, according to HUD’s charges an association required a tenant, who was a Gulf War veteran, to pay a registration fee, provide proof of liability coverage, and sign a medical release for it to obtain his confidential medical records. The tenant provided medical documentation of his need for the assistance animal and obtained liability insurance but refused to give Respondents access to his private medical information or to pay the $150 fee. Even after it acknowledged that the veteran’s dog was a medically necessary assistance animal, the association continued to demand that he pay the fee. The association also assessed a number of fines against the owner of the unit for the presence of the support dog, and the unit owners refused to renew the tenant’s lease until he paid the fee and the fines. The tenant and his wife moved away rather than pay. Such fees and fines are prohibited by the Fair Housing Act, as are requirements that persons with disabilities obtain liability insurance and provide their medical records.

HUD issued the following charge of discrimination:

The charge seeks (1) a declaration that the association’s policies violate the act; (2) an injunction prohibiting the association and its representatives from discriminating against any person because of disability in any aspect of the rental, sale, use or enjoyment of a dwelling in the development; (3) an award of damages suffered by the complainant for inconvenience and economic loss caused by the association’s discriminatory conduct; and (4) assessment of a fine in the amount of $16,000 against the association, the management company and the individual manager.

The charge will be heard by a U.S. administrative law judge unless one of the parties elects to have the case heard in federal district court.
Note that in conjunction with this particular case, HUD issued the following statement:

“Today, many veterans return home with mobility impairments or other conditions that can be alleviated by a support animal”….“HUD will enforce the Fair Housing Act against policies that prevent people with disabilities from having a medically necessary assistance animal at home.”

Given HUD’s statement, it would wise for associations to take particular care with respect to responding to emotional support pet requested by veterans.

HUD has issued several other charges against housing providers, including associations, for failure to provide reasonable accommodations to disabled individuals who need emotional support animals. In most of the cases, the individual has provided information from health care practitioners or other qualified persons stating the individual is disabled and needs the accommodation, but the associations have requested further verification.

  • Group Homes

Not only does the Act prohibit discrimination against individuals who are disabled, but the Act would require associations to provide reasonable accommodations to groups of individuals who are disabled.  Case law across the country indicates that group homes serving people with disabilities are entitled to protections afforded under the Act, even though the covenants or ordinances governing the community prohibit such use.

The Colorado Supreme Court specifically addressed this issue of whether an operation of a group home for developmentally disabled children violated a residential use restriction in restrictive covenants in Double D. Manor, Inc. v. Evergreen Meadows Homeowners’ Association, 773 P.2d 1046 (1989).

The covenant in question included a structural use (one “single-family dwelling”) and a use restriction (“residential use”).  The Court held that use of the property as a home for developmentally disabled children was a “residential use” for purposes of the restrictive covenant applicable to the property.  The Court found that a state licensed group home for eight persons with mental illness is a residential use of the property for zoning purposes and that a state licensed group home for eight developmentally disabled persons is declared to be a residential use for zoning purposes.

  • Requests for Interpreters

What about a hearing-impaired individual who needs a sign language interpreter for various activities in the community?  There has been at least one federal lawsuit filed against an association by a disabled resident for failure to provide him an interpreter for his use in the community.  The association had hosted a hurricane preparedness event featuring local police, firefighters, and other professionals.  The resident requested that a sign language interpreter be hired at the association’s cost so that he could attend and participate. The association refused, which landed it in a lawsuit for discrimination.

A request by a hearing-impaired individual for a sign language interpreter to participate in important decision-making activities at an association meeting affecting legal rights or financial obligations as a homeowner would seem to be an appropriate reasonable accommodation request to be made by the individual.  Moreover, if the provision of a sign language interpreter is not a financial or administrative hardship for the association, it would be appropriate to provide and pay for the services.

However, what if the individual requests a sign language interpreter at not just the annual meetings, but all the board meetings and other functions (e.g., social events, committee meetings, etc.)?  Does the association have to pay for a sign language interpreter to attend each event?  Requests for accommodations that may not be reasonable are discussed in the next section.

When is a request not reasonable?
If the request: (i) imposes an undue financial and administrative burden on the association, or (ii) would fundamentally alter the nature of the association’s operations, it is not reasonable.

The determination of undue financial and administrative burden must be made on a case-by-case basis considering various factors, such as the cost of the requested accommodation, the financial resources of the provider, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.

As an example of when a request may place an undue financial and administrative burden on a housing provider, the HUD and DOJ Joint Statement provide the following:

As a result of a disability, a tenant is physically unable to open the dumpster placed in the parking lot by his housing provider for trash collection. The tenant requests that the housing provider send a maintenance staff person to his apartment on a daily basis to collect his trash and take it to the dumpster. Because the housing development is a small operation with limited financial resources and the maintenance staff is on site only twice per week, it may be an undue financial and administrative burden for the housing provider to grant the requested daily trash pick-up service. Accordingly, the requested accommodation may not be reasonable. If the housing provider denies the requested accommodation as unreasonable, the housing provider should discuss with the tenant whether reasonable accommodations could be provided to meet the tenant’s disability-related needs – for instance, placing an open trash collection can in a location that is readily accessible to the tenant so the tenant can dispose of his own trash and the provider’s maintenance staff can then transfer the trash to the dumpster when they are on site. Such an accommodation would not involve a fundamental alteration of the provider’s operations and would involve little financial and administrative burden for the provider while accommodating the tenant’s disability-related needs.

A “fundamental alteration” is one that alters the essential nature of the association’s operations.  For example, if a mobility-impaired resident asks the association to hire a car service to take him or her to work as a reasonable accommodation, and the association does not provide any transportation services for its residents, this request would require a fundamental alteration in the nature of the association’s operations.

If the association refuses a request as not reasonable, the association should still discuss with the individual whether there is an alternative accommodation that would effectively meet the individual’s disability-related needs without fundamentally altering the association’s operations or imposing an undue financial and administrative burden on the association.

What is a Reasonable Modification and what are some typical questions associations must answer when evaluating a reasonable modification request?
A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings, and to the common areas.

Like reasonable accommodations, a modification must be reasonable, and there must be some relationship, or nexus, between the modification request and the individual’s disability.  A request for modification may be denied if the request was not made by or on behalf of a person with a disability, or if there is no disability related need for the modification.

The big difference between a reasonable accommodation and a reasonable modification is that the individual, not the association, bears the cost of installing the modification.  However, the cost of removing the modification, if installed on the common area, is borne by the association.

Also, since reasonable modifications are often made to the exterior of a unit or on the common areas, associations should be concerned with architectural review requirements for the modification, as well as responsibility for future maintenance of the modification.

Here is an example of a reasonable modification request that highlights the various issues that could arise for an association when evaluating the request:

A mobility-impaired owner who uses a wheelchair purchases a unit in a condominium complex. He asks the association if he can install a wheelchair ramp to the exterior of his condominium unit to provide access to his unit.  The ramp will be installed on the common elements of the association.

  1. Is the association required to grant the modification?
    Both the disability is obvious, and the need for modification is obvious. The owner needs the wheelchair ramp to gain access to his unit using his wheelchair.
  2. Who pays for the wheelchair ramp?
    The owner.
  3. What kind of architectural conditions can the association place on the proposed ramp?
    The association can still ask the owner to submit an architectural review request form but note that any unreasonable delay on reviewing the request will expose the association to liability. Therefore, the association should review reasonable modification requests priority over standard requests. Understandably, an association would be concerned with the aesthetic harmony of the ramp with the rest of the community.  The association can require alternative design if it imposes no additional costs to the owner, and still meets the owner’s needs. The association cannot require the owner to use a particular contractor to do the work.  However, the association can require that owner submit plans and specifications, apply for appropriate building permits, and satisfy other conditions specified by the Board, to ensure the work is performed in a safe and skillful manner.

Although an association may be concerned with potential liability since the ramp is to be installed on the common areas, the association cannot require the owner to obtain special liability insurance additional insurance over the ramp as a condition of approval.

  1. Who maintains the ramp?
    The owner is responsible for the upkeep and maintenance of the ramp if it is exclusively used by him. However, if the ramp is made to an area that is normally maintained by the association and used by others (i.e., general common elements), then the association has to maintain it.  For example, a ramp installed to the entrance of a condominium building, as opposed to just the owner’s unit, is normally maintained by the association and used by other residents. Therefore, the association would be required to maintain the ramp.
  2. Does the association have to provide snow removal on the ramp?
    If the ramp is installed on a portion of the common area for which the association normally provides snow removal service, the association will have to pay for snow removal on the ramp. If the ramp is installed on a portion of the common area for which the association does not normally provide snow removal service, or which is required to be maintained by the owner, the owner will have to pay for snow removal on the ramp.
  3. If the owner moves or no longer needs the modification, must the owner restore the common area to its original condition?
    Modifications to the common area are not required to be restored to original condition. If the association wants to remove the ramp, it must do so at its cost.

Also, like reasonable accommodations, there needs to be a relationship between the requested modification and the disability.  The DOJ and HUD issued a Joint Statement regarding Reasonable Modifications under the Fair Housing Act, which provides the following example of when a requested modification may be denied because of no relationship between the disability and the need for the modification:

A homeowner with a mobility disability asks the condo association to permit him to change his roofing from shaker shingles to clay tiles and fiberglass shingles because he alleges that the shingles are less fireproof and put him at greater risk during a fire. There is no evidence that the shingles permitted by the homeowner’s association provide inadequate fire protection and the person with the disability has not identified a nexus between his disability and the need for clay tiles and fiberglass shingles. The homeowner’s association is not required to permit the homeowner’s modification because the homeowner’s request is not reasonable and there is no nexus between the request and the disability.

Finally, what if the modifications should have been there per federal law in the first place?  Does the disabled individual still have to pay for it?

The Act provides that covered multifamily dwellings built for first occupancy after March 13, 1991, shall be designed and constructed to meet certain minimum accessibility and adaptability standards.  If any of the structural changes needed by the disabled individual are ones that should have been included in the unit or public and common use area when constructed, at least one federal court has held that the individual may have a potential claim against the housing provider for failing to make the modifications.  However, if the requested structural changes are not a feature of accessible design that should have already existed in the building pursuant to the design and construction requirements under the Act, then the individual is responsible for paying for the cost of the structural changes as a reasonable modification.

  1. Other Potential Discriminatory Actions under the Act

Discrimination claims filed against associations are usually based on familial status or disability.  However, associations also regularly get sued for other types of discrimination, such as the following.

  • Religious Discrimination: In one case, the association had a rule that prohibited residents from placing personal objects in the common areas, including hallways and doorways.  A Jewish owner filed a religious discrimination complaint against the association for failure to allow her to keep a mezuzah affixed to her doorpost.  The court rules that the Act requires accommodation of disabled persons and that no such accommodation was required for religious beliefs and practices. Therefore, a religion-neutral, exception-free rule would not be discriminatory even if it may conflict with some residents’ religious practices.
  • Racial Discrimination: A prospective tenant who is African-American sued a community manager and the association for racial discrimination when the manager falsely represented that the unit had already been rented, when in fact it was vacant.  The association asserted that it was exempt from the Act because it did not own or lease any of the condominiums itself, even if its bylaws gave it the authority to reject potential lessees.  A Florida U.S. District Court found that associations are subject to the Fair Housing Act where they have the authority to reject potential lessees, and the association’s actions in this particular case were rooted in negative racial stereotypes.
  • Rights of First Refusal: Some governing documents allow the association, or the owners within the association, to be given the opportunity to purchase a condominium unit which is for sale, prior to allowing the unit to be purchased by an outside third party. This has given rise to claims that the association is discriminating against potential purchasers who fall within the protected categories under the Act by preventing their purchase of the unit.
  • Non-Uniform Enforcement: A person may claim that an association is only enforcing a covenant against him because of his race, religion or some other protected category.  If the individual can show a pattern of enforcement only against similarly situated people, or the failure to enforce violations against other people who are not similarly situated, the association is exposed to liability for discrimination.
  • Failure to Enforce / Refusal to Intervene: One community association member was persistently harassing the former president of the association, who was of a different ethnicity than the harasser.  The harassment was extreme, including physical threats and racial and sexual slurs.  The woman filed suit against the board when it refused to intervene, and a District Court ruled that a community association board has the same obligation as a landlord in a rental building to protect residents from sexual and racial discrimination.  The association eventually settled the case by paying the former president $550,000 and agreeing to purchase her condominium unit.
  • Failure to Obtain FHA: Recently, the Ohio Civil Rights commission filed suit against an association for failing to obtain FHA certification based on discrimination.  In the case filed, a single mother with one child attempted to purchase a condominium in a community that was previously FHA-certified. The community, however, had made the decision not to seek FHA recertification after its initial certification expired.  Since the community was not certified, the loan failed, and the Commission filed suit. While there are undoubtedly facts specific to this case, it appears that the failure to seek certification gave rise to a claim that the lack of certification had a disparate impact based on familial status.

Other Claims of Discrimination Outside of The Act
While charges against associations for discrimination are often filed for violations of the Act, associations are also faced with other claims of discrimination outside of the Act.

  • LGBT or Marital Status Discrimination

The Act only covers discrimination based on the following categories: race, color, religion, sex, national origin, familial status, and disability. However, many states extend the prohibition against discrimination to other categories beyond those stated under the Act.   In addition to the protected categories listed under the Act, Colorado anti-discrimination laws also prohibit discrimination based on creed, ancestry, sexual orientation, marital status, and retaliation. See C.R.S. 24-34-501, et seq.  So, for example, if a Colorado association attempts to enforce restrictions that directly discriminate against, or have a disparate impact on, same-sex couples or unmarried couples, this would violate Colorado’s anti-discrimination laws, even though it might not be found to violate the Act.

Note, however, that while the Act does not specifically include sexual orientation and gender identity as prohibited bases, HUD has issued a policy and regulations that prohibit discrimination on the basis of gender identity, sexual orientation, or marital status in all federally-funded housing programs.

  • Tenants

We have seen a growing number of associations who adopt restrictions that treat tenants differently than owners, the most common one being a rule or restriction that prohibits only tenants from having pets (while allowing owners to have them).  Are tenants a protected category under the Act? No.  Moreover, we have not found any state anti-discriminatory laws that extend protection to tenants.  Of course, tenants, like any other individual, can be discriminated against on the basis of one of the other protected categories, such as disability, familial status, or race.

  • Sex Offenders

Some associations refuse registered sex offenders from access to common area facilities or amend the governing documents to prevent sex offenders from purchasing property in the community.  As basis for adopting these restrictions, associations claim that members of the Association are entitled to adequately protect themselves and their children from sex offenders.  Are they protected under the Act?  No. Sex offenders, by virtue of their status, are not considered persons with disabilities protected by the Act, and we have not found any state anti-discriminatory laws that extend protection to sex offenders.

Proactive Ways To Reduce Discrimination Claims
Today’s fair housing laws impose many obligations on homeowner associations as well as prohibit many seemingly reasonable actions by associations.  Moreover, while there are many pitfalls, implementing the following practices will help you avoid stepping into what can be a snake pit of liability.

  1. Adopt a Reasonable Accommodation/Modification Policy:

As stated above, charges are regularly filed against associations for discrimination based on disability.  An association should adopt a policy that sets forth its compliance with a disabled individual’s need for a reasonable accommodation or modification under the Act. This will help the board act appropriately and uniformly concerning all reasonable accommodation or modification requests under the Act.

The policy should cover the following:

  1. How disabled individuals may request a reasonable accommodation or modification (i.e., form for request)
  2. The guidelines that the board will consider in evaluating the request, such as:
    1. Whether the individual has a disability as defined by the Act
    2. That if the disability is not readily apparent, the board may request documentation verifying the disability, and the relationship between disability and the accommodation or modification.
    3. That if the request is for a modification, the individual will be required to submit plans and satisfy other conditions to ensure the work is performed in a safe and skillful manner.
    4. That the board may determine whether the accommodation or modification is necessary to afford the resident an equal opportunity to use and enjoy his/her home or the community.
    5. That the board may determine whether the accommodation or modification is reasonable.
    6. That if the request requires the association to spend money, the board may consider the association’s financial resources, the cost of the request, and the availability of other less expensive alternative accommodations that would effectively meet the resident’s needs, in determining whether the request is reasonable.
  3. That the board will respond within a reasonable time of receiving the complete request.
  4. A standard form for use in verifying disabilities and the need for the accommodation, where the disability and need are not readily apparent.

In addition to adopting a policy, associations should follow these practice pointers when faced with a reasonable accommodation or modification request:

  • Do not request verification if the disability is obvious and it is obvious how the requested modification will afford the individual equal opportunity to use and enjoyment of home or community.
  • The applicant for a request is not required to be an owner or the person in need of the accommodation or modification. It can be someone requesting on behalf of the disabled individual.
  • The health care provider providing verification of the disability is not required to be a physician.
  • Respond to requests in writing promptly.
  • If there is no request, there is generally no obligation to make the accommodation.  However, if a verbal request is made, follow through.  Also, if an accommodation is obvious, offer it.
  • Do not deny a request because of a related or unrelated violation at the time of the request.  Place all violation issues on hold while applicant obtains requested information.
  • Thoroughly document the reason for denial.
  1. Review Restrictions, Rules, and Regulations for Discriminatory Language:
    A quick glance at an association’s rules will often reveal at least one instance of discrimination.  Courts have held that the mere publication and distribution of a discriminatory rule is a violation of the Act, whether the rule is attempted to be enforced by the association or not. This exposes Association officers and managers to potential liability for simply performing part of their duties of disseminating governing documents to residents.   Often, an association is not even aware it has old rules in its documents that violate the Fair Housing Act. For this reason, an association should have its governing documents reviewed by an attorney to make sure all rules and regulations comply with the Act. Similarly, an association should consult an attorney when adopting new rules or amending old ones—for the same reason.
  2. Consult your Attorney.
    If you receive a request from a disabled individual in your community, do not hesitate to contact your lawyer.  It may sound self-serving, but, fair housing laws contain many pitfalls for the unwary.  An attorney can help you identify the association’s legal obligations and duties in each particular case.
  3. Enforce your Covenants in a Consistent Manner.
    Picking and choosing whom you will enforce your covenants against is never a sound practice, but it can be fatal in a fair housing setting.
  4. Engage the Individual Seeking an Accommodation in an Interactive Dialogue.
    This can be achieved by inviting the person to the next board meeting or through written correspondence such as letters and e-mails.  Work with the individual to create a solution to the situation that meets all parties’ needs.
  5. Be Professional.
    Be professional at all times when addressing individuals alleging discrimination or seeking an accommodation.  The topic of discrimination is often emotionally charged.  Keep your emotions in check, as you may say something you later regret that exposes the association to liability.
  6. If Your Association is Faced with a Discrimination Complaint:
  • Be civil. Don’t strike back at the person who filed the complaint.
  • Don’t ask the complainant why they filed it or the substance of it. That is the job for HUD or the state discrimination agency. Just comply with the process.
  • Take the complaint seriously. Be responsive and provide information quickly and truthfully.  If there has been no discrimination, and investigation and review of the requested information will reveal this. Understand the process under state law and federal law.
  • Community associations with well-documented procedures can demonstrate to investigators that no discrimination occurred.

Federal courts and California courts have applied anti-discrimination laws to community associations prohibiting them from discriminating against families with children unless there is a legitimate health, safety or business reason for doing so.

Singling Out Children. Associations may not prohibit children from playing, skateboarding, or riding bikes, scooters in driveways or other areas. Any rule that singles out children may be considered discriminatory. A rule that prohibits children from roller skating or riding bikes in the complex would be struck down as discriminatory. (See U.S. v. Plaza Mobile Estates.)

Even-Handed Rules. A rule that prohibits everyone (of all ages) from roller skating or rollerblading in the complex has a better chance of surviving scrutiny–but not necessarily. In a 2003 case entitled Housing Rights Center v. Rivera Town Homes #CV 02-5163PA (C.D. Cal. Feb. 2003) seven families sued their condominium association alleging discriminated on the basis of familial status because the association prohibited children from playing in the common areas. The Federal Court ordered the association to pay $130,000 in damages and to repeal its rules against children. Also, the association agreed to a two-year anti-discrimination training program for its staff, management company, and board members.

Examples of discriminatory rules include the following:

  • Children cannot loiter or to play in the lobbies, hallways, stairways, atrium or elevators. (Presumably, it is okay for adults to loiter and play in these areas.)
  • While in front of the building, children must be well behaved and not disturb other homeowners. (But it is okay for adults to misbehave and disturb other owners.)

Safety. Rules restricting skateboarding, rollerblading and bicycle riding may be applied to specific areas that represent a threat of injury or damage, such as: (i) indoor hallways due to damage to carpet and potential injury to owners exiting their front doors (provided it applies to everyone), (ii) parking structures (potential injury from traffic and potential damage to parked vehicles), (iii) around swimming pools, and (iv) blind intersections.

Conclusion

Although associations are subject to the Fair Housing Act, few boards are familiar enough with the Act to be able to identify the multitude of ways they could be exposing themselves and the association to claims of discrimination. To avoid liability, and sometimes severe penalties for a finding of discrimination, boards need to fully understand and comply with the Act and their state’s anti-discriminatory laws. With a little effort on the front end, such as adopting a policy or reviewing their rules and regulations for discriminatory language, boards will reduce or eliminate discrimination claims from being filed altogether.

Rules for residents with children

What are reasonable rules for residents with children?

Federal fair housing law prohibits discrimination against families with children. This prohibition extends to rules or lease terms that unreasonably restrict the activities of families with children more than other residents, or interfere with the ability of families with children to use and enjoy their units or lots to the same extent as residents that do not have children.

On the other hand, housing providers are entitled to establish reasonable rules and lease terms that protect the safety and enjoyment of all apartment residents. Drawing the line between what is and is not reasonable, however, is not always easy to do.  However, here are a few tips that will help you stay out of hot water.

First, avoid establishing rules or lease terms that are specifically directed at children. Rather, establish rules for all residents of the complex. If it is unsafe for a child to ride a skateboard on the railing, it is unsafe for an adult to do that as well. Keep in mind that children have the same rights to use and enjoy the property as adults do.

Second, make sure that the rule is justified by a compelling business need and uses the least restrictive means to meet that need.  Courts have struck down rules prohibiting children from using a billiards room or shuffleboard court, for example, as well as rules requiring that an adult supervise all children who are outside at all times. Risk warnings and age cutoffs are less restrictive ways to deal with owner concerns that are more likely to be deemed reasonable, although even those must be narrowly tailored to meet a compelling need and are likely to be scrutinized by a court.

Third, avoid imposing a blanket rule on all residents in response to the problematic behavior of one resident.  If a child has broken a sprinkler head, do not impose a rule prohibiting children from playing on the grass; rather, work with the problematic child’s family.

Fourth, try to strike a fair balance between the right of children to do the things that children do, such as play, cry, use toys and make noise, and the rights of other residents to live peacefully in their units.  It is reasonable, for example, to expect that all residents, including children, are quiet after 10 or 11 p.m.  It might also be reasonable to prohibit all residents, including children, from leaving personal property on a common sidewalk where people might trip on it. It is much more problematic, however, to expect children to be quiet in the middle of the day on a Saturday or to prohibit playing with any toys outside.

Finally, whatever rules you establish, make sure you enforce them evenly against families with children and adults. If you give a family a notice for excessive noise after 10 p.m., you should also give notice for excessive noise to the couple next door who throw loud parties every weekend.  Moreover, if you are not sure, get some good advice from someone knowledgeable about the laws, such as your local fair housing agency.