Community Associations and the Fair Housing Act
By Hans C. Wahl April 4, 2022 Posted in Community Association Law Share
Community association board members and managers must be mindful of the Fair Housing Act (“FHA”) and the obligations it puts on housing providers such as condominium and homeowners’ associations. The FHA prohibits discrimination by housing providers on the basis of race; color; religion; sex; national origin; familial status; or disability. Florida has enacted its own set of fair housing laws (the Florida Fair Housing Act), which adopts similar language and incorporates the FHA into Florida law. Overlooking these housing laws can have costly consequences for community associations.
The definitions of race, color, religion, sex, and national origin, as contained within the FHA, are straightforward. “Familial Status” is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with a parent or another person having legal custody of such individuals.” 24 CFR § 100.20. “Disability” is defined as “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.” 24 CFR § 100.201. Under the FHA, disability does not include current, illegal use of, or addiction to, a controlled substance. Id. Issues that community associations often face, and that are addressed by the FHA, include support animals, disability accommodation requests, and new tenant / owner screening procedures.
The FHA governs requests for both service animals and emotional support animals. When an owner or tenant makes an accommodation request for either a service animal and/or an emotional support animal, and the request is legitimate, community associations must make reasonable accommodations to its rules to allow for such animals, regardless of whether the association has a strict no pet policy. 42 U.S.C. § 3604(f)(3)(B). With this being said, community associations are sometimes permitted to make reasonable inquiries into the request to determine its validity. In Florida it is a crime for someone to misrepresent his or her pet as a service animal if it is not actually one. Fla. Stat. § 413.08(9).
A resident with a disability may, under the FHA, request the community association to make modifications to its common element property. For example, this can include adding wheelchair ramps, guard rails, handicap parking spaces, pool lift chairs, and accessible bathrooms, among other items. In order to not violate the FHA, community associations must be willing to make such reasonable modifications to its property to address the needs of a resident with a disability. However, the person making the modification request must pay for it. Thus, if a disabled resident makes a modification request, and is willing to pay for it, the community association cannot refuse it. Conversely, if the Americans With Disabilities Act applies, and a resident makes a request under the ADA, the community association must cover the cost of the modification.
New tenant and owner screening procedures are where community associations can unintentionally violate the FHA. As one example, the HUD’s Office of General Counsel issued formal guidance on the FHA’s standards for the use of criminal records by housing providers in screening prospective owners and tenants. HUD explains that, “While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another.” See HUD FHA Guidance (2016).
According to HUD, an association’s blanket policy that automatically excludes individuals from housing because of a prior arrest, when that arrest did not lead to a conviction, can actually be a discriminatory policy if it disproportionately impacts a certain race or national origin. When it comes to evaluating prior criminal history, HUD explains that a tenant screening policy must take into account the nature and severity of the conviction, along with the amount of time that has passed since the crime. The FHA does allow for prospective tenants to be denied if the person “has been convicted . . . of the illegal manufacture or distribution of a controlled substance. …” FHA § 807(b)(4). An association with a policy where prospective owners / tenants are automatically rejected because of prior arrests, without considering convictions, may want to have an experienced attorney review the policy to evaluate compliance with federal law.
Valid claims under the FHA against housing providers, such as condominium or homeowners’ associations, do not require initial acts of discrimination. Valid claims can be over seemingly neutral rules, policies, or practices that, when enforced, end up having a disparate impact on protected classes. This means that community associations can be liable under the FHA even when there is no wrongful intent or no knowledge that a rule or policy would have a discriminating effect when implemented. Community associations should have an experienced attorney review its governing documents and policies to identify any provisions that may violate the FHA. Associations should also consult with an attorney when receiving modification and/or accommodation requests under the FHA.