Fair Housing
Community Associations Institute (CAI) supports the right of all individuals to be free from illegal discrimination on the basis of race, color, religion, sex (including gender identity and sexual orientation), familial status, national origin, or disability. CAI also supports the right of community associations to enforce their covenants, bylaws, and rules provided they do not illegally discriminate against any protected class.
CAI encourages fair and reasonable interpretations and administration of, or changes to, federal, state, and local fair housing acts and related legislation and regulations.
In 1968, Congress adopted the Federal Fair Housing Act to prohibit discrimination based on race, color, religion, sex, or national origin. In 1988, Congress amended the Act by adding handicap and familial status to the list of classes protected from discrimination. Almost all states have enacted similar or identical statutes. The 1988 law provides exceptions from familial discrimination claims for valid housing-for-older-persons communities. The Housing for Older Persons Act [HOPA] signed into law by President Clinton in 1995 amended the housing-for-older-persons exemption from familial-status discrimination claims. It modified one of the 1988 Amendments Act requirements while continuing to require that at least 80 percent of the housing units be occupied by at least one person 55 years of age or older. A further requirement for facilities or communities claiming the exemption is a biennial age verification. HOPA may provide a “good faith reliance defense or exemption against monetary damages” with respect to claims of familial discrimination.
Additionally, the Equal Credit Opportunity Act, which may apply to community associations, prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age, because an applicant receives income from a public assistance program, or because an applicant has in good faith exercised any right under the Consumer Credit Protection Act.
CAI rejects illegal discrimination in housing and favors the availability of adequate and appropriate housing for all age groups. Furthermore, CAI is concerned about the availability of housing accessible to disabled individuals. CAI supports improvements that make residential dwellings and surrounding areas readily accessible and usable by disabled people, while recognizing that in certain instances the law requires the disabled person making a request for a modification to the common areas to be responsible for the cost of the modification.
In HUD's advisory documentation it has indicated that occupancy restrictions that are consistent with building code requirements will, generally, be considered nondiscriminatory. Other occupancy restrictions are subject to a case-by-case analysis that considers the restriction on an "as applied" basis to the then current facts, leaving the association with the burden of demonstrating the reasonableness of the restriction. In any matter involving the possibility of a discrimination claim, the association should seek legal counsel to respond appropriately and to minimize unforeseen consequences.
RECOMMENDATION
CAI supports legislation allowing community associations to maintain reasonable occupancy restrictions.
CAI will continue to work for other fair and reasonable interpretations of, and changes to, the federal Fair Housing Act. While reasonable occupancy restrictions impact housing issues, that is only one consideration that community associations should address. Community associations are encouraged to consider each of the following:
Familiarity with local and state requirements, in addition to federal law, surrounding fair housing matters is necessary since they may impose additional standards.
The association, its governing board, and management must be educated on the potential ramifications of fair housing law violations, including the awarding of punitive damages and legal fees to successful third parties, which damages and fees are generally not covered by insurance.
Board members and management must be sensitive to those matters that may constitute discrimination, even if they otherwise seem normal or customary. Matters as simple as selective rules enforcement, adopting and enforcing rules that disproportionately impact on children without a well-documented safety or public welfare basis, or suggesting that a family with children would be more “comfortable” in a different community, may all result in successful claims of discrimination.
Before posting age-related signs on fitness or other equipment, the association must confirm with the equipment manufacturer that age-related concerns in the use of the equipment are valid.
When a “reasonable accommodation” is requested by a disabled person, before dismissing the request as unfounded or dismissing the person who requested it as “not disabled,” the association must seek appropriate professional guidance inasmuch as the case law interpreting the obligation to provide such accommodations is lengthy and complex and the failure to honor a legitimate request may have serious consequences.
When rendering decisions concerning reasonable accommodations, reasonable modifications of the common elements or discrimination based on familial status or other grounds, the governing board must factor in the impact of an adverse proceeding and judgment on its resources.
If the association manages a qualified age-restricted community, in order to maintain its qualified status, it must have procedures in place to provide for a biennial age verification process in accordance with the regulations of the U.S. Department of Housing and Urban Development
Adopted by the Board of Trustees, October 29, 1988
Amended by the Public Policy Committee, October 6, 1993
Adopted by the Board of Trustees, October 9, 1993
Amended by the Public Policy Committee, October 28, 1998
Approved by the Government & Public Affairs Council, October 28, 1998
Adopted by the Board of Trustees, October 31, 1998
Adopted by the Government and Public Affairs Committee on March 25, 2011
Adopted by the Board of Trustees, May 4, 2011