Community Associations: The New Protectors of Civil Rights?

As Tennessee continues to see record growth in real estate sales and new subdivision development, the diversity of homeowners, tenants and occupants living in homeowner and condominium associations can quickly translate into increased liability when it comes to complaints about discrimination and harassment. Community association volunteer board members and professional management companies need to be armed with a basic understanding of the differences between the Americans with Disabilities Act (ADA), the Federal Fair Housing Act (FFHA); state housing discrimination statutes, and the impact (if any) these laws have upon the communities that board members and professional managers have a duty to protect.

Under the Tennessee Nonprofit Corporation Act,[1] volunteer board members of a homeowner or condominium association must discharge their duties in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner that the director reasonably believes to be in the best interest of the association. This is best described by the “business judgment rule.” In other words, when boards make decisions based upon good business judgment, considering all available information on a subject, consulting with experts on an issue, listening to all sides of an issue and making a decision about a particular issue with the best interest of the association in mind, they generally cannot be held liable should their decision not work out as they planned.

In addition to the Business Judgment Rule, most association governing documents require the association to carry Directors and Officers (D&O) insurance, the premiums for which are paid by homeowner members of the association as a part of the common expenses. The D&O insurance covers legal fees and damages when lawsuits are brought against board members for their actions and the board members have exercised good business judgment. Additional insurance can be purchased for protection against discrimination claims, but can be quite expensive. The directors should review its D&O insurance policy to be sure that it includes coverage for harassment charges, if such coverage is available.

Bottom line, even with the protections of the Business Judgment Rule and D&O insurance, if a member of the association board receives a complaint based upon a violation of the ADA, FFHA or Tennessee law, doing nothing at all or not reacting appropriately, will nonetheless, subject them to liability.

Professional homeowner and condominium association management companies are hired by the association board and have a contractual duty to oversee the maintenance, repair and replacement of association common areas; to ensure that owners are paying assessments; and that the official association financial records are properly reconciled and maintained. Most complaints involving a violation of the ADA or FFHA, originate with the management company. Just as the volunteer board can be subject to liability for failing to respond or inadequately responding to complaints, management companies can quickly find themselves named as a defendant in discrimination and harassment suits.

Americans with Disabilities Act

Under the Americans with Disabilities Act (ADA),[2] all public facilities are required to comply with specific use and construction requirements to accommodate individuals with disabilities.

The ADA only applies to “public accommodations,” which is any facility that is owned by a private entity but is operated for, used by or leased to the general public. The ADA actually defines “public accommodations” as a facility whose operations affect commerce and fall within one of12 categories that are listed within the ADA.

Generally, the ADA will only apply to association amenities, the use of which is not reserved exclusively for association members, their guests and tenants. Examples include associations that are part of a timeshare; associations that allows churches, schools, clubs or other members of the general public to use its pool (whether the association charges a fee for such use or not); associations that lease its clubhouse to non-association members, clubs and members of the general public as an event venue; and association parking lots that are used for guest parking or overflow parking for adjacent properties.

Each of these scenarios would subject the association to the mandates of the ADA and require that it modify all such areas open to the general public by widening doorways, installing special bathrooms, installing access ramps and handrails, reserving parking areas for “handicap use only” and numerous other physical modifications. The ADA expressly requires the cost of “reasonable accommodations” to be paid for by the place of public accommodation, so the association would have to bear the expense of all such modifications.

Example of ADA mandates for community association swimming pools open to the general public:

Swimming pools fall within one of the 12 ADA categories mentioned above as “places of exercise or recreation.” If an association does allow members of the general public to use its pool, it must comply with Section 242 of the ADA. Section 242.2 requires that swimming pools have at least two accessible means of entry.  Accessible means of entry include swimming pool lifts; sloped entries; transfer walls; transfer systems; and pool stairs. Where more than one means of access is provided into the water, each access point should be located at different areas of the pool so that access may accommodate people with varying needs and provide them with increased options for entry into and exit from the pool.

Although they may have the best of intentions, by granting use of their swimming pool to the general public, associations can unleash a Pandora’s Box of very cumbersome and cost-prohibitive ADA provisions that could lead to special assessments and other financial burdens being imposed upon its members. The best option for community associations is to reserve use of  swimming pools and other amenities exclusively to members, guests and tenants of the association.

Federal Fair Housing Act (FFHA)

The basic provision of the Fair Housing Act (FHA)[3] that applies to community associations is 42 U.S.C. § 3604, which provides inter alia:

It shall be unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” And “It shall be unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of handicap.”[4]

Protected Classes
Under the FFHA it is illegal for community associations to discriminate on the basis of race, color, national origin, sex, familial status (e.g. households with children under the age of 18) or disability. Some examples of association actions that if directed toward a protected class, will be considered discriminatory include:

  • Inconsistent responses to service requests;
  • Inconsistent application of penalties such as fines and removal of community privileges;
  • Inconsistency in allowing access to association amenities (e.g., granting the request by a Bible study group to meet in the clubhouse, but denying the atheist group’s request);
  • Making exceptions to association restrictions and rules for some association members and not others.

Discriminatory Association Document Provisions
Community associations can also discriminate against members of an FFHA protected class and not even know they are they are doing so. How can this be? By having discriminatory provisions that were written into its governing documents either when the subdivision was first formed, or through a subsequent amendment.

Provisions of community association governing documents that are per se discriminatory are illegal. For example, prohibiting children under the age of 10 from living in the community and/or using the swimming pool are discriminatory based upon familial status. Discriminatory provisions such as these are made null and void by the Fair Housing Act. Associations can be sued by HUD or advocacy groups for the mere existence of discriminatory provisions within their governing documents.

In the “children under the age of 10” example above, the association governing documents should be amended to remove the restriction for children under the age of 10 and substitute for it, a restriction that prohibits use of the pool by anyone under the age of 14, and require that they be accompanied by an adult.

Examples of courts holding that discriminatory association governing document provisions are per se illegal, are widespread throughout the United States. Some of these examples include:

  • A provision restricting the use of tricycles anywhere on the property was ruled by a court to be a means of discouraging families with young children and a violation of the familial status protected class.
  • A requirement that all residents fly the American Flag on national holidays and decorate their homes during Christmas is discriminatory against homeowners who are Jehovah’s Witnesses because their religion mandates that they not fly national flags or decorate for Christmas.
  • Denial of a condominium owner’s ARC request (because of a by-law restriction) to attach a Jewish Mezuzah at the front door entrance to their unit was held to have a discriminatory impact on Jewish members of the association. The court fined the association $10,000 and ordered it to rewrite its by-laws.

Associations, particularly older associations, should have their governing documents inspected by their attorneys, who can identify discriminatory provisions. If any such discriminatory provisions are identified, the association should always amend its documents to remove these provisions.

If the association board and/or community management company receives a complaint about any form of discrimination of a true protected class (including complaints about sexual harassment), the association has a legal duty to investigate AND take action.

Discrimination Against People with Disabilities
If you’re a board member in your association, you need to understand the Fair Housing Act as well as any additional laws your state has passed in conjunction with the federal act. Under Tennessee’s fair housing law,[5] with regard to the sale and rental of housing, no person may be denied a dwelling; refused a rental; refused the ability to sell or rent housing; denied the provision of services or facilities in connection with such housing; or discriminated against by refusing to make reasonable accommodations in rules, policies, practices and services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoyment of a dwelling, based upon race, color, creed, religion, sex, national origin, familial status or disability.

With regard to disabled homeowners or renters, the Fair Housing Act requires associations to make “reasonable accommodations or modifications.”

What’s the difference between an accommodation and a modification?
An accommodation would be an exception to the association bylaws or rules that would enable the disabled individual to receive equal treatment within the association, such as designating a parking spot near the entrance as a handicapped space; or reassignment of parking spaces; creating an extra wide parking space; or, overruling parking restrictions to allow the parking of a disability van in the driveway or on common areas. Generally, the homeowner is required to pay for any accommodations.

A modification requires physical changes be made, such as building a handicap ramp to the front entrance; or a curb cut to allow for easier access by wheelchairs. Generally, the homeowner is required to pay for any modifications to the property. They are also required to restore the property to the original state unless it would not hinder the future rental or sale of the unit. There is some argument they would not be required to restore things that are on the outside of the home like a ramp. The law is unclear in a homeowner situation as opposed to a multi-family situation.

If the homeowner or condominium association receives a request for an accommodation or modification, it should:

  1. Ask for documentation that the person is disabled. Provide the homeowner with a Reasonable Accommodation Request Verification form for their health care provider to fill out. The form should ask whether the person is disabled and whether the requested accommodation is to accommodate the disability. The form SHOULD NOT ask about a diagnosis or the severity or the type of disability.
  2. Determine if the request is “reasonable.” What is “reasonable” is subjective. According to HUD, a request is not considered reasonable if it imposes “an undue financial or administrative burden on the housing provider or it would fundamentally alter the nature of the provider’s operations.” Otherwise, the request is considered to be reasonable and must be fulfilled. One example of an undue hardship is when the modification or accommodation will create a safety hazard. If parking a van near a corner where school buses pick up and drop off children or other pedestrians would create a visual obstruction for traffic, the requested accommodation may be considered unreasonable. Just because one accommodation is unreasonable however, does not relieve the homeowner or association from making a different accommodation. The homeowner or association should have an interactive on-going conversation with the resident to determine what other accommodations may meet his/her needs without causing an undue hardship. Additionally, fair housing laws do not require a landlord to accommodate a tenant who is a direct threat to either himself or others.
  3. Understand who will pay for any physical changes to the association common area or property. Generally, accommodations are paid for by the homeowner or association. For example, the cost of designating a parking space for a disabled resident would be the responsibility of the homeowner or association. On the other hand, the cost of modifications are the responsibility of the resident.
  4. Consult with the association’s attorney. Whether you receive a request from a disabled homeowner or renter within your homeowner or condominium association, you should always talk with your association’s attorney first. Situations vary and state law can change over the years, so be sure to receive legal advice before approving or denying the request.

Homeowner Rights and Responsibilities

If you are an owner in a homeowner or condominium association, you have rights under the Fair Housing Act to request reasonable accommodations and modifications that provide you with equal treatment should you ever become disabled.

Should you decide to lease your house or condominium, you have responsibilities as a landlord to comply with state and federal laws. With many laws however, there are exceptions. Tennessee Fair Housing Law,[6] and the Federal Fair Housing Act[7] are no different. An example of one such exception is owner or family occupied houses or condominiums. A homeowner who owns at least two units in Tennessee (or four units under federal law), who lives in or has a family member who lives in one of the units, and is not in the business of selling or leasing housing, is exempt from the duty to comply with the Fair Housing Act.

If you do choose to rent your unit, be sure to talk with a real estate attorney who can guide you through the process.

Rights of Prospective Homeowners

If a homeowner or condominium association requires potential owners to complete and submit an application prior to purchasing a home or condominium within the subdivision, it should never ask potential owners to submit information about race, religion, national origin or any other protected class. Additionally, if an association is requiring new owners to undergo a personal interview, it can be argued that the interviewer is collecting information such as race, religion and national origin simply by seeing and talking to the prospective owner. If such information is requested and, subsequently, the prospective new owner feels that he or she has been discriminated against, a fair housing complaint can be filed against the association or even individual board members.

Harassment or Discrimination Between Neighbors Based on Protected Class

If a homeowner or non-owner resident files a complaint with the association for harassment committed against them by another homeowner or resident, and the harassment (including sexual harassment) is alleged to have been committed against a person who is a member of a protected class, the association should respond in writing immediately, stating that it will investigate the allegation and respond appropriately if sufficient proof is obtained. If a homeowner believes the association has not responded to the complaint about harassment, and the harassment continues, the association may find itself defending a fair housing complaint.

If the association investigates and finds sufficient evidence that the allegations of harassment have proven to be true, the association may impose fines and deny privileges (if it has a written fine and remedy policy that addresses findings of harassment).

Statute of Limitations

A fair housing claim may be filed by someone up to two years after the alleged situation occurs. It is important for the association to document everything in writing as soon as it receives a complaint or actual notice of an alleged harassment. This will prove to be crucial at trial should the case get that far.

Exceptions to Protected Class Discrimination … Permissible Discrimination?

‘Over 55’ or Senior Housing Communities
In 1995, Congress passed the Housing for Older Persons Act.[8] Under the act, housing communities that qualify as “housing for older persons” may exclude families with minor children. This is an exception to only the protected class of familial status. These communities still must comply with other provisions of fair housing laws.

There are three categories of “housing for older persons” or “designated senior housing”:

  1. housing provided under specific state or federal programs;
  2. housing intended for person 62 years of age or older; and,
  3. housing designated “55 and older” communities.

For a community to qualify in all three categories the community must:

  1. have a minimum of 80 percent of its units be occupied by at least one resident who is over 55 years of age or older;
  2. demonstrate its intent to exist as senior housing in all of its advertising, leases and rules and regulations; and,
  3. monitor the composition of its unit owners on a regular basis (at least once every two years) to be sure that 80 percent of its units have at least one owner living in them who is 55 years or older.

Case Law

Case #1
Charles Hollis, et ux v. Chestnut Bend Homeowners Association.[9]
Facts: Plaintiffs made numerous requests to the association’s Architectural Review Committee (ARC) for authorization to add a sunroom to their house for the purpose of creating a “particularized living environment” designed to “therapeutically stimulate the development” of two of their children who are physically and mentally disabled. The fourth and final request made by plaintiffs to the ARC, expressly stated that the sunroom was being requested as a “reasonable modification of their home under the Fair Housing Act.” The association attorney responded to the ARC request with additional requirements. As a result of the multiple ARC requests, denials, conditional approval and the stress created by the sunroom addition, the plaintiffs sold their home in Chestnut Bend and purchased a home in another neighborhood.

Burden of Proof: Whether an FHA suit is based on reasonable modification or reasonable accommodation, to be successful in a suit based upon the FHA, a plaintiff must prove 6 elements:

  1. the requested modification must be reasonable;
  2. the requested modification must be necessary;
  3. proof of the disability;
  4. a request for modification or accommodation was given to the defendant;
  5. defendant refused to make or permit the modification or accommodation; and
  6. defendant knew or should have known of the disability at the time of refusal.

Holding: The court held that Chestnut Bend’s refusal to approve plaintiff’s ARC request for a reasonable modification, constituted discrimination under the Fair Housing Act and awarded damages in the amount of $156,000 against Chestnut Bend.

Case #2
Gittleman v. Woodhaven Condominium Association.[10]
Facts: The plaintiff requested that the association assign a designated parking space to him because of his disability. The association board of directors denied his request stating that it was unable to grant the request because the master deed defined parking spaces as common elements for the nonexclusive use of all unit owners.

Holding: The court disagreed and held that under the Federal Fair Housing Act, the association is “duty bound to: (1) avoid enforcing provisions of the master deed that have discriminatory effects; and (2) regulate the use of the common elements so as to comply with the requirements of the FHA.” The association was found guilty of discrimination under the FHA’s guidelines.

Case #3
Massaro v. Mainlands Section 1 & 2 Civic Association.[11]
Facts: The Mainlands Section 1 & 2 is a single-family home residential community in Florida. The Mainlands Civic Association is a non-profit corporation charged with enforcing the Declaration of Covenants, Conditions and Restrictions to which all homes within the association are bound. The declaration has, inter alia, an age restriction that reads “the use of all the lots in the aforedescribed lands is hereby limited to permanent residents 16 years of age and older.” The association mailed a letter to the plaintiff-residents advising them that the presence of their infant son in their home violated the declaration and warned that if they did not remove their son, litigation would ensue. When the plaintiff-residents threatened to file suit alleging violation of the FHAA, the association voted to amend its declaration to restrict occupancy in homes to persons 55 years old and over.

Holding: The court held that the defendant-association did not maintain significant facilities and services specifically designed to meet the physical and social needs of older persons; it did not have a minimum of 80 percent of the homes occupied by at least one person who was 55 years or older; and it did not sufficiently publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years of age or older. Because of the lack of these requirements, the court held that the association did not qualify for the older-person exemption provided by the Housing for Older Persons Act and thus, discriminated against the plaintiffs based on the familial status provisions of the FHAA.

Conclusion

The purpose of fair housing laws is to give equal treatment to all members. While the reasonable accommodation provisions require associations and homeowners to treat residents with disabilitiesmore favorably, it is only to allow them to enjoy and use their housing the same as other non-disabled residents.

The bottom line is that all complaints received from homeowners, tenants or occupants should be taken very seriously and acted upon in a timely manner. But complaints that involve discrimination and harassment should be given immediate attention. Whether received by a homeowner or condominium association board member or the association’s management company, these complaints should immediately be forwarded to the association’s attorney. After contacting the attorney, written notice should be mailed to the complainant notifying them that the association has received the complaint, that it is taking action to address it and that the association or its representative will contact the complainant to discuss measures that will be taken to resolve the matter.

Notes

  1. Tenn. Code Ann. §48-58-301. Tennessee Nonprofit Corporation Act. General standards for directors.
  2. 42 U.S.C. § 12181, et seq. Americans with Disabilities Act, Subchapter III: Public Accommodations and Services Operated by Private Entities.
  3. 42 U.S.C. §§ 3601-3619. Federal Fair Housing Act.
  4. 42 U.S.C. §§ 3604(b)-3604(f)(3)(B). Discrimination in the sale or rental of housing and other prohibited practices.
  5. Tenn. Code Ann.§ 4-21-601. Discriminatory housing practices generally.
  6. TTenn. Code Ann.§ 4-21-602(a)(1) and 602(a)(2). Exemption from housing provisions.
  7. 42 U.S.C. § 3603(b). Exemptions.
  8. 42 U.S.C. §3607(b). Housing for Old Persons Act. Amends the Fair Housing Act.
  9. Charles Hollis v. Chestnut Bend Homeowners Association. (2014 WL 4446834)
  10. Gittleman v. Woodhaven Condominium Association (972 F. Supp. 894(1997)
  11. Massaro v. Mainlands Section 1 & 2 Civic Association (3 F.3d 1472)

Scott D. Weiss SCOTT D. WEISS Is an attorney at Weiss & Weiss, attorneys at law. His practice is dedicated primarily to the representation of homeowner and condominium associations throughout Tennessee. Weiss is the co-author of the Tennessee Homeowners Association Act; he is the president-elect for the Tennessee Chapter of Community Associations Institute (CAI) and serves as a member of CAI’s board of directors and legislative action committee. Weiss lectures regularly on issues of importance to community associations in Tennessee and has served as an advisor to the Tennessee Attorney General’s Office and members of Tennessee’s General Assembly as an expert in community association law.

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