April is National Fair Housing Month. What a great time to review your association’s rules, policies and procedures to make sure you are in compliance with state and national fair housing laws, which prohibit discrimination in housing on the basis of a person’s membership in one or more of the protected classes.
Do you know what the protected classes are?
Before even looking at your documents to determine whether they could be perceived as discriminatory, you might need to first take a step back and make sure you know what the protected classes are under the applicable laws. Under the Federal Fair Housing Act (“FHA”), there are seven protected classes. These include race, color, national origin, sex, religion, familial status, and disability. The Minnesota Human Rights Act (“MHRA”) uses the same seven protected classes plus an additional four: creed, marital status, status with regard to public assistance, and sexual orientation. Several municipalities, including Minneapolis and St. Paul, also have local civil rights ordinances that include age and/or ancestry as additional protected classes.
What actions are prohibited?
The FHA and MHRA list specific types of discriminatory conduct that are prohibited in relation to housing. For most condo and townhome associations that are not involved in the sale or rental of a unit by an owner, several of the types of prohibited conduct do not really even come into play (i.e. using advertisements that express a preference for or against persons in a protected class or misrepresenting that a property is not available for sale or rental to a person in a protected class). However, these will be applicable for most cooperatives and potentially for any townhome or condo association that has in its documents a right of first refusal. But for most associations, the types of prohibited conduct that are of primary concern are related to the following: discrimination in the conditions or privileges of sale or rental of a dwelling on the basis of membership in a protected class; discrimination in access to a service related to the sale or rental of a dwelling on the basis of membership in a protected class or a person’s response to harassment because of said membership in a protected class; subjecting a person to harassment because of membership in a protected class that causes the person to vacate a dwelling or abandon efforts to secure the dwelling; and retaliation against a person because that person reported a discriminatory housing practice to a housing provider or other authority. In lay terms, this means that an association or other housing provider cannot have rules or policies in place or engage in any conduct that would treat someone in a protected class differently because of their membership in that protected class. In the case of a disability, this also means that the association cannot refuse to make a reasonable accommodation or allow a resident to make a reasonable modification of the property if it is necessary for a disabled resident to have the same right to use and enjoy the property as a non-disabled person.
Additionally, associations and boards cannot harass residents or subject residents to harassment by other owners or residents because of their membership in a protected class. An association can be held personally liable for fair housing violations even where the association or board has not engaged in any discriminatory conduct itself if a third party is engaging in discriminatory conduct such as harassment and the association is aware of it and has the ability to stop it but fails to do so. Most associations appropriately take the position that they will not get involved in personal disputes between neighbors. However, this approach may not be the best one if the dispute involves harassment or potential harassment by one neighbor against another on the basis of the second neighbor’s membership in a protected class. In that case, to the extent that the association has the ability to stop said harassment through enforcement of applicable rules, it must do so or risk being liable for the harassing conduct as if the board were engaging in said conduct itself. At the bare minimum, a board will have to investigate any allegations of this type of harassment to determine if the complaint is valid and if the board has the ability or obligation to take action to stop the harassing conduct.
Finally, an association can be deemed to have engaged in prohibited conduct if it acts in a way that is retaliatory toward someone who files a fair housing complaint or otherwise reports alleged discriminatory conduct. This includes any attempt or threat to levy fines or assess a person’s unit for legal fees or costs related to responding to said complaint, which response can be deemed a separate fair housing violation even if the underlying discrimination complaint is dismissed or found to be without merit.
What should we be looking for in our rules and policies?
Statistically, the two areas where most associations and other housing providers get into trouble are in relation to familial status and disability discrimination. Familial status relates to having one or more children under the age of majority and/or being pregnant. Older governing documents that were drafted before familial status was included as a protected class under the FHA may contain language restricting or prohibiting children from even living in a Unit or visiting the property. These provisions are clearly unenforceable unless the association qualifies as a 55+ or 62+ community under the Housing for Older Persons Act (“HOPA”). If an association is not a qualified HOPA community and has such a discriminatory provision in their documents but is not in a position to amend the documents to remove it, then a resolution should be adopted acknowledging that this provision in the documents is in conflict with Federal law and that the association will not attempt to enforce it. Associations have been charged with Fair Housing violations for attempting to enforce this discriminatory language in their governing documents under a mistaken belief that it was enforceable, so it is important to make sure that future boards and residents are aware of the association’s position with regard to it.
Other rules and policies that treat children or families with children differently than other residents could also be deemed discriminatory and in violation of the FHA and MHRA and could subject the association to potential claims and liability. An example would be a rule that prohibits children from using the pool or fitness center or other amenity or restricts the hours that they can use said facilities or that requires them to be accompanied by an adult at all times. Another example would be a rule that is addressed specifically at the conduct of children or the use or storage of children’s toys or equipment. Even rules that are intended to protect children from safety hazards can be problematic if they have the effect of treating children differently or sending the message that children are not welcome. I recommend removing any reference to children from an association’s rules and policies and revising any such rules that are directed at children so that they are neutral and apply to all owners or residents regardless of age.
Disability discrimination can come in many forms but is most prevalent in connection with an association’s response to requests for reasonable accommodations and reasonable modifications. A reasonable accommodation is a change in an association’s rules, policies, procedures, etc. that may be necessary to afford a disabled person an equal opportunity to use and enjoy the property whereas a reasonable modification refers to a change to the structure or physical property (such as the installation of a wheelchair ramp) to accommodate a disabled person. We recommend that every association have in place written policies and procedures for handling requests for reasonable modifications and reasonable accommodations from owners and occupants and that these policies and procedures be reviewed by an attorney to ensure that they are in compliance with applicable law. Additionally, for associations that have restrictions on pets and animals that are or may be the subject of a reasonable accommodation request for a service or support animal, I highly recommend that specific policies and rules be adopted to address those service and support animals that may be on the property, as not all pet rules can be applied to service or support animals. Again, these rules and policies should be reviewed by an attorney with knowledge and experience in the area of fair housing laws to ensure that they do not subject the association to liability for discriminatory conduct. It is not uncommon for an association to grant a request for a reasonable accommodation for a service or support animal but still get into trouble from a fair housing standpoint because of its discriminatory rules regarding said animals.
If you have questions regarding fair housing issues or would like assistance in reviewing your rules and preparing appropriate policies for your association, or for any other questions or issues relating to community associations, feel free to contact the author.