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Avoid Discrimination & Lawsuits

DISCRIMINATION AND THE FAIR HOUSING ACT

There have been many occasions when discrimination charges are filed or are threatened to be filed, by property owners against COAs (Condominium Owners Associations) or HOAs (Home Owners Associations). The Fair Housing Act prohibits several forms of discrimination in housing. The following are some examples of how the laws may affect your Associations’ risk for legal action. As always, consult with your Association’s legal advisor for specific recommendations.

Discrimination Against Families with Children under 18

COAs and HOAs, with some exceptions, cannot discriminate against families that have children under the age of 18. Associations must be cautious and vigilant when establishing their policies not to deny families housing because they have children. Designating specific buildings or areas of the communities where families with children are housed is also a form of discrimination. Furthermore, associations cannot hinder a family with children from enjoying the common ground or amenities of the community.

A property can be designated as Housing for Older Persons (55 years of age). This type of housing, which meets the standards outlined in the Housing for Older Persons Act of 1995, may operate as “senior” housing and exclude residents under the age of 55.

Consideration also needs to be creating rules about children. Rather than publishing rules saying, “Children must wear approved diapers in the pool”, some Associations word the rule as “Individuals experiencing incontinence must wear approved protection in the pool” to make the rule non-age biased.

Modification of Unit Access for Individuals with Disabilities

An Association should plan to receive requests for modifying a property for disabilities. This could include enabling the owner exterior access to the property or changes so the individual can move throughout the unit with ease and without complication. Changes can be pre-approved and inspected to ensure they are necessary and do not impair the building structure or place the neighbors at a safety risk.

There may be ‘gray areas’ as it relates to a request from a person with a disability for an accommodation or modification of the building. If your COA or HOA receives a request, adopt the practice of fully investigating each request. Have a written policy in place for the process. Each request should be completed by the Board with a resolution in writing and considered a highly-confidential matter.

Discrimination Based on Protected Classes – Race or Color

When Congress voted to pass the Fair Housing Act in 1968, one of the main purposes was to prohibit race discrimination as it relates to sales or rentals of housing. The law includes COAs and HOAs. Almost fifty years later, however, the protected class of race or color continues to be most of the cases filed. It is illegal for Associations to disguise this type of discrimination by giving false information about the availability of housing.

Discrimination Based on Protected Classes – Religion

Associations must not discriminate against an individual or individuals based on religion. Also note that it can be illegal to create a restriction to intentionally limit property owners from using their home as a dwelling for worship.

Discrimination Based on Protected Classes – Sex, Including Sexual Harassment

Discrimination in housing based on an individual’s sex or sexual preferences is illegal. It is also against the law for Associations to demand sexual favors in return for certain waivers.

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