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) DFEH Auburn Woods I Bulletin on companion animals
• 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.

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