Q&A: Fair Housing/disability issues/discrimination

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Introduction

Homeowner association boards and members are often unaware that they are responsible for complying with fair housing laws, the set of civil rights statutes that prohibit discrimination in housing.  This Q&A is intended to provide basic information and useable resources for

• homeowners who don’t know that they have legally enforceable rights against discrimination, and
• HOA board members who need to know that they put the association in legal jeopardy if they violate fair housing/civil rights laws, and that the corporation (or voluntary association)—and even individual board members – could possibly get sued.

The following are cases that have been presented to the Center for California Homeowner Association Law for resolution.  All of them raise fair housing and civil rights questions for homeowner associations. 

• A Placer County senior association told a homeowner that his son couldn’t live under the same roof with him as caretaker, because the son was “underage,” that is, not 55 or older.
• Because he owed a $143 annual assessment, a Butte County association foreclosed on a homeowner, who was illiterate and unable to read the lien notices sent by the HOA’s debt collector.
• An association debt collector refused to accept assessment payments from two Alameda County homeowners and returned all their cashiers’ checks and money orders.  Both homeowners are African-American grandmothers.
• A Nevada County association fined a disabled homeowner $500 day, because she plowed her driveway in order to be able to exit the subdivision.  Fines totaled $50,000. The HOA threatened to foreclose in order to collect the fines.
• Two homeowners under the care of a doctor for emotional difficulties were ordered by a Placer County association to get rid of their companion animal dog or face fines of $50 a day. [Auburn Woods I Homeowners Association v. Fair Employment & Housing Commission 121 Cal. App. 4th 1578, 18 Cal. Rptr. 3d 669 (2004)
• A Calaveras County association foreclosed on a senior couple who owed a $120 annual assessment.  Their $275,000 home was sold for $70,000.
• A Marin County property manager urged an association board not to let a deaf homeowner nominate herself for a board position. The manager further advised the board not to disclose that the deaf homeowner had filed a complaint with the California Dept of Fair Employment and Housing.  DFEH notified the board that it was investigating the complaint.
• An Orange County property manager refused to translate association materials for homeowners in a complex where 99% of owner spoke only Spanish. “Materials” included board minutes (and the meetings themselves); official notices, e.g. assessment increases, and election notices and ballots. Homeowners were held liable for breaking HOA “rules” even though they were unable to read the English version of them.  

Q.  These cases DESCRIBE THE BEHAVIOR OF boards, property managers, and debt collectors.  Do all of these have responsibilities under the fair housing laws?

A.  Yes.  The fair housing laws apply to everyone in the housing industry.  If you design, build, sell, rent, manage, maintain, or advertise housing, or are in a housing related business, such as selling property insurance, mortgage loans, you must do so without discrimination based on personal characteristics such as gender, race, disability or age.  If you do act on stigmatizing or even patronizing decisions, you may be subject to litigation, fines, and loss of your job.

In laws and litigation across the country, legislatures and judges have permitted lawsuits against condominium associations, cooperatives, and condominium association boards of directors where their actions, or omissions, are alleged to have violated the civil rights laws.

Q.  What are the civil rights laws that apply to homeowner associations and their members and boards?

A.  All of the laws that apply to other forms of housing – for example rental housing and single-family detached — also apply to homeowner associations and their members and boards.  The law that applies to the majority of all housing in this country is the Fair Housing Act of 1988.  The Americans with Disabilities Act (ADA) applies to housing that includes some aspect open to the public, such as a swimming pool, computer services, or day care center. 

If the building received federal financial assistance for the land, buildings, rent, maintenance, or management, the following laws also apply:

• Title VI of the Civil Rights Act of 1964,
• Section 504 of the Rehabilitation Act,
• the Age Discrimination Act, and
• Title IX of the General Education Provisions Act of 1975.

Q.   Why do we need so many laws to cover housing discrimination?

A.  The reasons are partly historical and partly functional.  That is, each of the laws addresses either different subjects or they provide different corrective mechanisms.  The earliest civil rights law that addresses housing is the Civil Rights Act of 1866.  It prohibited racial discrimination in the sale and rental of real property and it guaranteed all persons the same right to make and enforce contracts “as is enjoyed by white persons”. 

Discrimination, and resulting segregation, continued through the 19^th and past the middle of the 20^th centuries before Congress tried a new approach to succeed in making contracts equally enforceable by minorities.  In the 1964 Civil Rights Acts, Congress attached the civil rights mandates to the receipt of federal funds.  By doing so, the federal agencies were somewhat successful in convincing public housing agencies, universities, local police departments, transportation agencies and the vast number of federally funded recipients to make their services and benefits equally available to Whites and to minorities. 

If the recipients failed to fulfill their funding-based certifications that they were in fact complying with their civil rights obligations, the federal agencies had the authority to stop funding them and to sue them.  For example, in 1979, a mid-western school system was threatened with the loss of its federal funds if it did not alter its practice of making its gyms available to only to boys basketball.  (Some of the high schools bussed girls to bowling alleys for their physical education classes.)  The system immediately opened its gyms to girls and developed equal athletics programs.

Q.  When did the civil rights laws begin to apply to private housing, housing that didn’t receive any federal funds?

A.  The Fair Housing Act of 1988 was the first federal law to apply civil rights protections to private and public housing.  The protections had originally been part of the 1964 Civil Rights Act, but were stricken because a majority in Congress believed that the federal government had no role to play in housing.  Congress was convinced to pass the law in 1968 after the Reverend Martin Luther King was assassinated, and the national goal of ending segregation received sufficient popular support. 

The Fair Housing Act is not connected to federal funds, as is Section 504, Title IX, prohibiting sex discrimination in schools and their housing, and the Age Discrimination Act.  The Fair Housing Act prohibits discrimination based upon race, color, sex, national origin, and religion.  The law was most recently amended in 1988 to prohibit discrimination against families with children and individuals with disabilities.

Q.  Where can I find a copy of the federal law?

 A. HUD has posted the Fair Housing Act and the related laws that apply to housing and discrimination at:  http://nhl.gov/offices/fheo/FHLaws/index.cfm

Q.  Is there a California Fair Housing Act and is different from the federal law?

A.  Yes.  The California law is called the Fair Employment and Housing Law (FEHA).  It differs from the Federal law by including protections from discrimination based on marital status and source of income.  That means that a homeowner association may establish different rules for married and unmarried couples or for renters or homeowners because of the source of their purchase funds or their rent. 

The California definition of “disabled” is broader than the federal definition.  Under federal law, a person is defined as having a disability if she has “a physical or mental impairment that substantially limits one or more of such person’s major life activities.”  The California law omits the word “substantially.”  (See Q__ for more on disability.)

Q.  Where can I find a copy of the California law?

A.  The Fair Employment and Housing Commission, is responsible for enforcing California’s employment and housing laws.  It has provided links to the state fair housing law and related state civil rights laws on its website at:  http://www.fehc.ca.gov/act/default.asp

Q.  Is the Fair Housing Act the first federal law that protected individuals with disabilities?

A.  No.  Section 504 of the Rehabilitation Act of 1973 was the first civil rights law to cover people with disabilities. It was originally been enacted to provide benefits and services to World War I veterans, but as it was re-enacted it reflected Americans perceptions of disability.  The drafters of the 1973 law adopted the same language as the 1964 Civil Rights Act, making illegal for any recipient of Federal financial assistance to exclude disabled persons from participation in or deny benefits to them or subject them to discrimination “solely by reason of her or his handicap.”       29 U.S.C 794.

Every federal agency has its own Section 504 regulations.  Each regulation is based on the work of the particular agency.  HUD’s Section 504 regulations apply to housing.

Q.  Is the Americans with Disabilities Act the same as Section 504 and does it also protect people with disabilities from housing discrimination?

A.  No, it is not the same as Section 504, and the ADA does not apply strictly to housing.  Congress passed the law in 1990, two years after the Fair Housing Amendments Act.  The ADA differs markedly from Section 504.  The ADA is not linked to the receipt of federal funds.  The ADA was intended to fill the gaps left by Section 504 and the other civil rights laws, including the Fair Housing Act.  It can be best understood as the disability version of the 1964 Public Accommodations law that prohibits restaurants from refusing to seat African American customers, along with separate movie theaters, doctors’ offices, sports stadiums, schools, parks, and swimming pools serving only one race or one nationality.  The ADA requires the same integration for individuals with disabilities.

Q.   I understand that the ADA was passed to allow wheelchairs into movie theaters, but how does the ADA apply to homeowner associations (or does it)?

A.  You’re right that the biggest impact of the ADA has been to generate public and commercial wheelchair accessibility.  But it also applies to housing that includes a service that is open to the public.

Q.  Does that mean that if one of our homeowners runs a day care center or a computer training site that the ADA will make us put in accessible bathrooms in all of the condominiums?

A.  No, it doesn’t.  But the ADA does require that the part that is open to the public, the child care center, for example, must be accessible to anyone who has a physical or mental disability.  The bathroom in the child care center must be large enough for a child, teacher or parent using a wheelchair.

The ADA standard is “readily achievable.”  Thus, existing properties are not always able to provide perfect access, and sometimes wheelchair access can be achieved through the back door only.  But for new construction, the law requires accessibility.  This is true of government subsidized housing and it is true of older, private housing, where accessibility is “readily achievable.”

Q.  What does it take to prove that you have a disability and are entitled to an accommodation?

 A.  Judges, including the Auburn Woods Homeowners court, use the following standard:

“In order to establish discrimination based on a refusal to provide reasonable accommodations, a party must establish that he or she (1) suffers from a disability as defined in FEHA, (2) the discriminating party knew of, or should have known of, the disability, (3) accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling, and (4) the discriminating party refused to make this accommodation.”

Q. But what if a renter or homeowner asks for an accommodation that violates the CC&R’s?

 A.  Each situation requires a careful factual investigation.  But if the homeowner has a legal right to ask for what she needs, the CC&R’s must give way to that right.

Q.  Does that mean that a Board has to allow a homeowner to have a dog even if the CC&R’s clearly state that no pets are allowed?

A.  It depends.  If a homeowner wants a dog because President Obama got a dog for his daughters, the answer is no.  But if the homeowner has a mental or physical disability and a companion animal will enable the resident to enjoy her housing because it helps her with the symptoms of her disability, the answer may be yes.

In a 2004 California case, Auburn Woods Homeowner’s Association v. Elebiari, the homeowner told the Association that he and his wife needed Pooky as a reasonable accommodation to their mental and physical disabilities.  The Court held that the no-dog rule had to yield to the Elebiaris’ need to use and enjoy their home.  The dog ceased being a pet when the Eliabaris’ doctor confirmed that Pooky was a companion animal that was helping manage their disabilities.  As the Court said, “There was abundant evidence introduced at the hearing that the Elebiaris’ disabilities interfered with the use and enjoyment of their home, and that having a dog improved this situation.” http://home.att.net/~providencepark2/Downloads2/DFEH_Companion_Animals_2004.pdf

Even if the homeowner’s dog/cat/gerbil/or hamster is “just a pet,” the HOA may not be able to ban it or to fine the homeowner, who keeps it.  Recent legislation governing pets in associations is described elsewhere on this website at  http://www.calhomelaw.org/doc.asp?id=420.  Be sure and read this section if there are “rules” about pets in your HOA.

Q.  What if the property gets federal funding to subsidize the rent?  Do other laws apply?

A.  Yes.  Federal funds carry civil rights responsibilities that do not apply to purely private property.   For example, Section 504 of the Rehabilitation Act applies to disability discrimination.  Title VI of the Civil Rights Act of 1964 applies to race, national origin, and religious discrimination.  The Age Discrimination Act applies if the owner, association or manager discriminates against youth or seniors based on their age.  You can find all of the laws that apply to housing at this HUD website: http://nhl.gov/offices/fheo/FHLaws/index.cfm

Q.  What difference does it make if a housing provider received federal funds?

A. If a multifamily property received federal construction funds, or funds to subsidize the rents, for example, the owners and managers of the building are responsible for complying with the Fair Housing Act and with the other civil rights laws.  If HUD proves that an association limits renters to those who come from Chinese neighborhoods, and doesn’t allow other nationalities to apply, the association may have to pay HUD the cost of the federal construction funds.

Q.  Does that mean that if one of the homeowners rents to someone who pays with a federal rent subsidy, like a Section 8 Voucher, that the entire property is subject to the federal civil rights laws that attach to federal funding?

A.  No.  The rent that a single family pays with a government rental subsidy is not federal funding to the housing owner or manager, in the same way that food stamps are not federal funding for the supermarket.

Q.  What about roll-in showers and ramps and other accessibility features?  If a homeowner asks the association for one of these, must the Association pay for and install it?

A.  The answers depend on whether the property was built with or receives federal funding, when the property was built, and when the request was made.

            1.  Properties with government financing: then Section 504 applies.  The property owner or Homeowners’ Association is responsible for paying for and installing reasonable accommodations, such as ramps. 

            2.  Private properties with no government financing: then the Fair Housing Act, the Americans with Disabilities Act and state laws apply.  An accommodation is deemed to be reasonable if it is requested by a disabled person, a connection exists between the disability and the accommodation so that it will enable the requestor to enjoy her housing, it doesn’t impose an undue financial and administrative burden on the Association or housing provider, and it is within the property’s functions.

An easy way to remember these elements is with the acronym DANCE:

D – Disability

A – Ask for an accommodation

N – Nexus/Connection between the accommodation and the disability

C—Cost isn’t financially and administratively burdensome

E—The request is not for something that the owner or Association doesn’t provide (Eg., transportation for shopping).

            3.  When the property was built.

The Federal fair housing act requires that all multifamily building that was constructed and made available for occupancy after March 1991, must include universal design features.  These are no-step entrances, 32” clearance at doorways, 36” clearance in hallways, bathrooms and kitchens that a wheelchair user can back into and from, and environmental controls that are reachable from a wheelchair.

If the building has an elevator, all of the units must include these features.  If the building has no elevator, these specifications apply to the ground floor units.

            4.  When the request is made.

A recent 9^th Circuit Court of Appeals case held that the request for new construction features must be made within 2 years of the completion of the project.

Q.  Is there a difference between a reasonable accommodation and a reasonable modification?

A.  Typically, an accommodation applies to policies and procedures.  Asking an Association to suspend its pet rules for a companion animal, giving a disabled homeowner the parking space closest to his unit, when the assigned space is further away, or giving a disabled owner or renter one of the limited parking spaces when the rule is “first come, first served,” are all examples of accommodations.

            Modifications are typically physical changes.  For example, if a person of short stature wants to lower the kitchen counters, the homeowner must allow the change but may demand that the renter establish an escrow account to return the counters to their original height at the end of the lease and that the owner approve the contractor hired to do the work.

Q.  Are there other documents that explain these accommodation and modification rules?

A. Yes, there are many.  Two of the most readable and most reliable are the Joint Statements by HUD and the U.S. Department of Justice.  You may find them at: http://nhl.gov/offices/fheo/library/huddojstatement.pdf for reasonable accommodations, and http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf for modifications.

Q.  If you get federal funding, are you responsible for only disability laws?

A.  No.  Federal funding carries responsibilities for treating everyone equally, regardless of their disability, race, sex, age, gender, religion, and national origin.  For example, if the property manager refuses to respond to maintenance calls from an African American family, for example, both he and the Homeowners’ Association may be sued.

Q.  Why should the Homeowners Association be responsible for a property manager’s illegal behavior?

A.  If the Association employs the property manager, it is responsible for the manager’s acts.  The concept in employment law is “respondeat superior.”  The employer is legally responsible for her employee’s actions..

Q.  Are Boards and their members also responsible for one neighbor acting discriminatorily against another neighbor?

A.  Yes.  Associations and their members and boards often find themselves in legal trouble when they are directly involved in the discriminatory conduct, or the association failed to use powers available under its bylaws to attempt to stop racial or sexual or other discriminatory harassment between owners that the association reasonably knew was taking place.  J. Relman, Housing Discrimination Practice Manual, Vol. 1, p. 2-58

Q.  What if a homeowner complains that another homeowner is sexually harassing her?  We’re not responsible for knowing how homeowners treat each other, are we?

A.  If a Homeowner Association receives a complaint that alleges that a homeowner is creating a “hostile housing environment” for another homeowner, the Association has a duty to enforce the CC&Rs.  The CC&Rs prohibit all homeowners from creating nuisances and interfering with each others’ enjoyment of their own properties.

The Association may also be subject to a fair housing complaint.  In one case, the Association was told that a disabled child was being harassed by others living at the property, including name-calling, false accusations, taunts and theft of the child’s wallet.  The Association took no action and was sued.  Sciabella v. Sierra Blanca No., One condo Assoc., 2000 U.S. Dist. LEXIS 18894 (N.D. II 2000)

Other Associations have been sued for not taking any action when a homeowner stood in her yard waving a shotgun and spouting racial epithets, Secretary v. Johnson, HUD ALJ decision, and sexual harassment, Beliveau v. Caras, 873 F. Supp. 1393 (C.D. Cal. 1995);Reeves v. Carrollsburg Condominium Assoc., 1997 U.S. Dist. LEXIS 21762 (D.D.C. 1997).  In the California case, Beliveau, the Court ruled in favor of the victim because the Association took no action to change an impermissible hostile environment that altered the conditions of their housing.

Q.  I don’t understand why the fact patterns at the beginning of this Q&A involve civil rights issues.  In the first one, the property manager didn’t want a deaf homeowner on the Board.  Isn’t it ok to limit Board membership to people who can hear what’s going on AT THE MEETINGS?

A.  The CC&Rs describe the qualifications of Board members.  Usually, the only qualification is that they be homeowners.  If a homeowner is deaf and wants to be a Board member, she wants to participate so that she can have a say in the Board’s determinations.  She knows that she’s deaf and has figured out how to know how to participate.  Others’ opinions about the limitations of a disability continue to be the biggest barrier that people with disabilities face.  It’s the reason that disability rights laws are necessary.

In another case, the landlord refused to rent a 3^rd floor apartment to a blind woman with three children.  The landlord argued that it was unsafe, that the mother wouldn’t know when her children were in danger, and that his insurance company would increase his rates.  The Court rejected all of his arguments, saying that they were based on the landlord’s perception of the limitations of blindness.  In fact, the woman was a university professor and her children were excelling in school.

Q.  What about fining a homeowner who plowed her driveway?  Can’t an Association fine a homeowner for failing to follow the CC&Rs?

A.  Yes, an Association can impose fines.  In this situation, the homeowner had physical disabilities; she also  had 4 children.  Without a plowed road and driveway, she and her husband couldn’t leave their homes and couldn’t take their children to school.  The homeowner asked the Association to plow their driveway, as a reasonable accommodation. 

The Association refused, saying that it had no obligation to respond to the reasonable accommodation request and that plowing the road and driveway would interfere with other homeowners who wanted to drive their snowmobiles through the property.  In fact, the Association put up a locked cable across the road and shoved walls of snow with a snowplow to make the road impassable.  When the homeowners shoveled the snow and cut the cable to get out, the Association fined them $35,000 at $500/day, for using the road.  The disabled homeowner filed a complaint with the California Fair Employment and Housing Commission and the case settled when the Association offered the homeowner a significant sum of money.

Q.  Another one of the fact patterns at the beginning says that “an association debt collector refused to accept assessment payments from two homeowners and returned all their cashiers’ checks and money orders.  Both homeowners are African-American grandmothers.”  Does that mean that race discrimination can be claimed every time an African American is involved?

A.  No.  The basis of all civil rights laws is proof that people are treated differently because of characteristics that they can’t control, like color, race, national origin, etc.  Race was mentioned in the fact pattern because the HOA accepted the assessment payments from white, non-elderly homeowners but not from the African American grandmothers.  More investigation and proof will determine whether the HOA actions were based on the race and age of the homeowners.

                Research done by Sentinel Fair Housing/Oakland found that HOAs in five Bay Area counties used foreclosure as a collections tool against Hispanic households far out of proportion to their numbers in the census. 

Q.  Another fact pattern raises questions about senior housing. It says, “A Placer County senior association told a homeowner that his son couldn’t live under the same roof with him as caretaker, because the son was “underage,” that is, not 55 or older.”  What does that mean?

A.  When housing is made available only to older people, it does not accept families with children.  To harmonize Senior Communities with the Fair Housing prohibition against treating families with children differently, Congress enacted the Housing for Older Persons Act.  http://www.fairhousing.com/index.cfm?method=page.display&pageid=663.  According to HUD, “An exempt property will not violate the Fair Housing Act if it excludes families with children, but it does not have to do so. Of course, the property must meet the Act’s requirements that at least 80% of its occupied units have at least one occupant who is 55 or older, and that it publish and follow policies and procedures which demonstrate an intent to be 55 and older housing.” A property that has a population that is entirely over the age of 62 also qualifies as senior housing.

An exception to the rules applies to employees and in-home personal care attendants under the age of 55.  In this case, the senior wrote to the board citing the federal regulations creating the exemption for care-takers under the age of 55.  The association board wrote a formal letter of apology to the senior.  For more information, see the HOPA regulations at http://www.hud.gov/offices/fheo/seniors/hopa.pdf.  Another exception applies to properties whose rents are federally subsidized.   There, the HOA’s and property managers must admit eligible elderly families with children. http://www.cityoftacoma.org/Page.aspx?hid=4899

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