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Innocuous Association Rule or Covert Discrimination?

One of the basic functions of homeowners' and condominium associations is to create rules governing member and guest behavior. In undertaking this role, homeowners' and condominium associations face the risk of acting in a manner that is discriminatory. The Fair Housing Act ("FHA") in 1968, and the additions to that Act since that time have codified protection for defined protected classes, specifically race, religion, color, sex, national origin, disability, and family status. What is surprising to many community association board of directors is that they can still be charged with claims of discrimination as to their rules and policies even when the board had not intended any such effect. It is therefore of primary importance that homeowners' and condominium association board of directors ensure that their rules and policies generally treat all owners the same, and not unjustly discriminate based on a protected class.

First, a community association that implements a discriminatory rule in good faith and without ill intent can still face direct liability for an FHA violation, if it knew or should have known about the discriminatory conduct, had the authority to act upon it, and failed to take prompt action to correct it. 24 C.F.R. § 100.7. Since it is not uncommon for community associations to unintentionally enact rules that discriminate based on familial status and disability, it is very important that they consult with counsel regarding any rules or policies for which there seems to be a potentially negative impact on families and/or the disabled.

For instance, many familial status discrimination claims filed against community associations are a result of amenity rules which restrict minors who are not small children, and/or require that such minors be supervised by an adult. As an example, a gym or pool rule that states "no patrons under the age of 15 may enter without an adult" could be found to be discriminatory on its face based on familial status for unreasonably restricting older minors based on their age when there is no practical based to presume that a 15-year-old would not be able to swim in a pool and/or use a treadmill without an adult watching over him or her. The logic reasoned by federal courts is that at the age of 15, or for any arbitrary "older child" age, that child is no less capable generally of using the amenity than an adult.

Community associations may also be found in violation of the FHA when discriminating against disabled persons, particularly for not providing reasonable accommodations when requested, such as a designated parking space or an emotional assistance animal. If a person has a disability-related need for the accommodation, Associations must provide the accommodation so long as it is reasonable, does not impose an undue financial and administrative burden, or does not fundamentally alter the nature of the association's operations. Parking rights will require a review of how parking was assigned or designated in each community and therefore will require specific legal guidance.

The bottom line: in order to avoid creating and/or enforcing a rule or policy that may discriminate against families and/or disabled persons, community association boards of directors should consult counsel to avoid potential liability rather than risk an FHA complaint.