By: Hans C. Wahl, Esq.
Community association board members and managers are often so preoccupied ensuring compliance with state and local laws that they can sometimes overlook controlling federal law. Multiple federal statutory acts can apply to community associations in any given situation and overlooking those federal laws can have costly consequences. One such area of federal law that governs every community association at all times is the Fair Housing Act (“FHA”).
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 fair housing laws (the Florida Fair Housing Act) where it basically adopted the same language and incorporated the FHA into Florida law. The information contained in this article will apply to both federal and Florida housing laws.
Under the FHA, the definitions of race, color, religion, sex, and national origin 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.
Common issues involving the FHA that community associations regularly deal with include support animals, disability accommodation requests, and tenant screening. Concerning support animals, the FHA governs requests for both service animals and emotional support animals. When receiving a proper request from an owner or tenant due to a disability, community associations must make reasonable accommodations for both service animals and emotional support animals. 42 U.S.C. § 3604(f)(3)(B). This is true even if the association has a strict no pet policy. Keep in mind, however, that in Florida it is a crime for someone to misrepresent his or her pet as a service animal if that is not the case. Fla. Stat. § 413.08(9). Associations are sometimes permitted to make reasonable inquiries into the request to determine its validity. (See our prior blog on service animal requests).
A disabled member may, under the FHA, request the community association to make a modification to an existing structure or common element. Such modifications may include wheelchair ramps, handicap parking spaces, pool lift chairs, automatic doors, accessible bathrooms, etc. To comply with the FHA, community associations must be willing to make such reasonable modifications; however, under the FHA, the person making the modification request must pay for it. Stated another way, the community association must allow for the modification when the member making the request pays for it. (Whereas if the Americans With Disabilities Act applies, and a member makes a request under the ADA, the community association must pay for the modification).
The area where community associations can unknowingly get into the most trouble is with tenant and owner screening. Associations may be implementing certain screening procedures and policies yet have no idea that their practices may be violating the FHA. As an 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 states 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).
The HUD FHA Guidance continues further by stating that an association’s blanket policy that excludes individuals because of a prior arrest, without that arrest leading to a conviction, cannot satisfy the association’s burden of showing a nondiscriminatory policy. HUD suggests 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). (Emphasis added.) If your association automatically rejects prospective owners/tenants because of prior arrests you may want to have an experienced attorney review the policy to evaluate compliance with federal law.
What community associations must be cognizant of is that most claims under the FHA are not for initial acts of discrimination; rather, they are for seemingly neutral rules, policies or practices that, when enforced, end up having a disparate impact on protected classes. In other words, community associations can be liable under the FHA even if they had no wrongful intent or knew that a rule had a discriminatory effect when implemented. A community association should have its entire set of governing documents, including its rules and regulations, reviewed by an experienced attorney to determine whether any provisions violate the FHA. Associations should also consult an attorney when receiving member requests for modifications or other accommodations under the FHA.