New FHA Rules to Create New Association Duties
On September 13, HUD released new rules for the Fair Housing Act (FHA) that will impact community associations. Under these new rules, which take effect on October 14, 2016, a community association could face liability for the discriminatory acts of residents who harass or create a hostile environment for other residents.
As our regular blog readers should already be aware, the FHA prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability. Courts have applied the FHA to both HOAs and condominium associations, as well as other “housing providers.” The FHA requires an association to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling or common space. Associations must also allow for reasonable modifications to structures to afford equal use and enjoyment. Failure to do so where an accommodation or modification is requested and warranted can constitute discrimination.
Until now, a community association could be fairly certain it was complying with the FHA if it simply avoided implementing or enforcing any discriminatory rule or policy, and by diligently and thoughtfully responding to any request for a reasonable accommodation or modification. Now, however, the new rules adopted by HUD appear to impose a heightened duty on community associations to stop discriminatory behavior amongst residents. This potentially means proactive enforcement and enhanced responsibility to intervene to stop “bad” behavior.
The new rules will require associations to evaluate certain disputes between residents in the context of housing discrimination. Whereas previously an association may have considered certain noise complaints, for example, to be neighbor-to-neighbor disputes where the rule allegedly violated was not the subject of a request for accommodation, now if a similar complaint is received, it appears an association will have to evaluate the noise issue as a potential hostile environment complaint under FHA guidelines. Fortunately, in responding to concerns from CAI, the rules were drafted so that associations are not required to take actions outside the scope of their authority under law or their governing documents to halt housing discrimination.
Another example of the new rules impact might be where an association must reserve a common area parking space for a disabled residents’ use under a request for a reasonable accommodation. It appears that the new rules will extend the association’s obligation to regularly enforcing its parking rules to prevent a hostile environment—perhaps towing cars or issuing fines--for illegally parking in this disabled person’s spot.
As with any modification in the law or agency rule, it will take some time to determine how the changes will ultimately impact what associations are required to do to comply. Over time, the courts and government hearing bodies will render decisions on lawsuits and complaints, and we will learn as those decisions come down. In the meantime, in light of the new FHA rules, community association boards and managers need to be mindful of complaints of harassment, complaints that describe behavior that impact a disabled person’s use and enjoyment of the premises, as well as requests for accommodations and modifications.
Each situation is different. Boards and managers should contact experienced legal counsel with questions. Let us know if our team can help.