1. home and garden

Fair Housing Law
What is required of owner associations?
Candyce D. Cavanagh
Colorado State Bar Real Estate Luncheon
December 6, 2012
Orten Cavanagh & Holmes, LLC
Community Association Attorneys
Denver • Phone 720.221.9780 • Fax 720.221.9781
Colorado Springs • Phone 719.457.8420 • Fax 719.457 • 8419 • Toll Free 888-841-5149
Email: info@ochhoalaw.com • Web: www.ochhoalaw.com
TABLE OF CONTENTS
Background and Introduction to Fair Housing Law………………………………………... 1
Definition of "handicap"……………………………………………………………………… 2
Reasonable Accommodation Requirement…………………………………………………... 2
Reasonable Modification Requirement………………………………………………………. 3
Familial Status and Limits on Age Restrictions……………………………………………... 5
Common Issues as Addressed by Case Law: Parking and Pets…………………………….. 7
CCRD Determinations………………………………………………………………………… 9
Administrative Complaint Procedures………………………………………………………. 10
Damages………………………………………………………………………………………... 11
Practice Pointers for Owner Associations…………………………………………………….11
Conclusion and Recommendations……………………………………………………………12
Background and Introduction to Fair Housing Law
The Federal Fair Housing Act was adopted as Title VIII of the Civil Rights Act of 1968. In
1988, the scope of the Federal Fair Housing Act (“Act”) was expanded through the Federal Fair
Housing Amendments Act of 1988 (“FHAA”) which added familial status and handicap as
protected classes in addition to race, color religion, sex, and national origin. The FHAA protects
those in protected classes from housing discrimination.
In 1990 and 1991 the Colorado Fair Housing Act, which already made it illegal to discriminate
on the basis of race, color, sex, creed, religion, national origin, ancestry and physical handicap,
was amended to add mental handicap and familial status. The Colorado statute was amended
again later to change the word "handicap" to "disability" in this and all other Colorado statutes.
A comparison of the federal and Colorado fair housing statutes is shown below.
Federal Fair Housing Act:
Race
Color
Religion
Sex
National origin
Handicap
Familial status
Colorado Fair Housing Act:
Race
Color
Religion/Creed
Sex
National origin, ancestry
Disability
Familial status
Marital status
There have been no significant cases distinguishing between the words "national origin" and
"ancestry" or between "creed" and "religion" but the basis of marital status in Colorado law is
clearly a difference between it and the Federal Fair Housing Act.
The Colorado Fair Housing Act also covers some properties exempted under the Federal Fair
Housing Act. For a more comprehensive explanation of the similarities and differences in these
laws, the text of the Colorado statute may be found at C.R.S. § 24-34-501, et seq.
The impact on homeowner associations has been most significant with the additions of familial
status and handicap to the protected classes. No longer can communities prohibit children from
living in their communities unless the community is qualified under federal law as "housing for
older persons." Associations must also accept and respond to requests for modifications and
accommodations by residents who meet the definition of a person with a handicap.
Definition of “handicap”: "Handicap" is defined in the FHAA as:
•
a physical or mental impairment which substantially limits one or more life activities;
•
a record of such an impairment; or
•
being regarded as having such an impairment.
This definition includes: alcoholism, HIV or the AIDS virus, mental illness and certain
physiological disorders, and specified types of anatomical losses.
At first glance, the definition of handicap appears to be very broad. However, the requirement
that the impairment must “substantially limit one or more life activities” narrows the definition
of handicap. The word “substantially” precludes impairments that interfere in only a minor way
with major life activities. The U.S. Supreme Court has interpreted handicap somewhat narrowly
in several cases brought under the Americans with Disabilities Act, which Act uses the same
definition for handicap as is set forth in the FHAA. Typically, however, these cases have not
involved mental disabilities.
Reasonable Accommodation Requirement
The Colorado and federal fair housing acts require that associations make reasonable
accommodations to their rules, regulations, policies and services that may be necessary for a
disabled person to use or enjoy a dwelling. Some accommodations are readily apparent, such as
permitting a sight-impaired individual to have a seeing-eye dog in a “no pets” condominium and
permitting a mobility-impaired individual to have a parking space close to the entrance to their
residence. The basis for other accommodations may be less apparent. Companion animals for
persons with a range of alleged mental issues are one area of substantial debate.
In determining whether an accommodation is reasonable, the courts will consider whether the
accommodation imposes an undue burden on the housing provider. Courts look at the following
factors:
•
That the accommodation is not an undue financial burden;
•
That the accommodation would not be an undue administrative burden;
•
That the accommodation would not substantially alter the nature of the housing offered.
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Courts weigh the benefit of the accommodation to the disabled person against the burden on the
housing provider. Accommodations that constitute a fundamental alteration of the housing are
generally considered unreasonable (e.g., providing bus service to a disabled person who cannot
drive when the community does not provide such services).
Some courts have limited types of accommodations that must be provided to disabled
individuals. The 7th Circuit Court of Appeals limits the obligation to provide reasonable
accommodations to rules, policies, practices and services that impact disabled people because of
their disability and not to what they have in common with other people such as a limited amount
of money to spend on housing. (Good Shepherd v. City of Momence, 323 F.3d 557 (2003)) This
rule was applied to a group disability home in terminating water service for failure to pay for the
water.
Similarly, the 2nd Circuit Court of Appeals has limited the applicability of reasonable
accommodations to purely economic issues. (Marks v. BLDG Management Co., 2002 WL
764473 (S.D.N.Y. 2002)) In that case, a tenant with AIDS in a rent-controlled complex was
advised by her physician to summer in Florida, which would have resulted in having the
premises vacant. The tenant asked for permission to sublet her apartment which was prohibited
by the rules of the premises. Management denied the request. The reviewing court concluded
that the request was based on the applicant’s economic condition and not her disability. The
court also concluded that allowing the sublet of the property was also not required for the use
and enjoyment of the dwelling.
While associations are provided some guidance with regard to the standards evaluated in
determining a “reasonable” accommodation, even those standards are somewhat subjective.
However, these guidelines of “undue financial burden” and “undue administrative burden” give
associations a framework for evaluating requests for accommodations for those persons who
meet the standards of disability or handicap.
Reasonable Modification Requirement
The FHAA requires that the associations allow disabled persons to make reasonable
modifications to existing dwellings or common areas that are necessary to afford the disabled
person full enjoyment of his/her dwelling. Typically, interior modifications do not come to the
attention of associations unless they involve structural modifications. It is more common for
associations to receive requests for modifications to common areas such as ramps, fences, etc.
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In most instances modifications will be made by the applicant at his or her expense.
Associations should note, however, that the Americans with Disabilities Act (“ADA”) shifts the
cost obligation to the association, if any building or facility meets the definition of a "public
accommodation" under the ADA. For example, if an association rents its clubhouse for public
functions (e.g., weddings, meetings for people who are not residents in the community, etc.), the
facility may be deemed to be a public accommodation. In mixed-use developments with both
residential and commercial components, it is more likely that there will be places of public
accommodation. The ADA generally will not apply to most common interest communities
where the amenities are reserved for use of the members and their guests.
The association may place reasonable conditions on modifications. However, requirements that
unreasonably increase cost are likely not enforceable. Reasonable requirements may include the
following:
•
Require applicant to provide a reasonable description of the modification;
•
Require applicant to provide reasonable assurances that the work will be done in a
workmanlike manner;
•
Require applicant to obtain required building permits.
Associations should be aware that, under the federal and Colorado fair housing acts, there are
certain accessibility requirements for multi-family housing constructed after March 13, 1991.
While there are some exceptions to coverage (notably buildings with less than four units in a
structure, and townhomes that do not have elevators), all other multi-family housing with four or
more units in a structure, whether financed with private or public money, have accessibility
requirements. If there are questions, associations should seek advice as to whether their
community is covered by the accessibility standards. There are seven design and construction
requirements:
1.
2.
3.
4.
5.
Accessible building entrance on an accessible route
Accessible and usable public and common use areas
Usable doors
Accessible routes into and through covered unit
Light switches, electrical outlets, thermostats, and other environmental controls in
accessible locations
6. Reinforced walls in bathrooms for later installation of grab bars
7. Usable kitchens and bathrooms
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In newer communities constructed since March 13, 1991, associations may consider engaging an
expert to determine if the common areas in the community are constructed in accordance with
the accessibility standards. If not, and the developer fails to address the issues, the agencies
responsible for enforcement of these standards may be able to assist the association. To date, we
are unaware of enforcement action against associations for failure of the architect or builder to
design and construct the property in accordance with the mandated standards. However,
associations are routinely named as respondents in what HUD and the Colorado Civil Rights
Division call "failure to design and construct" cases, since they have to give permission for
changes to the common areas when the builders and architects are held liable for construction
and design errors. It is not clear if the association may be held responsible for modifications to
common areas that do not comply with accessibility standards when the accessibility issues are
raised years after the architect has moved to another state and the builder entity has been
dissolved.
Associations should be aware that the fair housing acts have no mandate to retrofit buildings and
common areas built before March of 1991, but the Americans with Disabilities Act does. As
explained above, certain parts of a community may be considered to be a "public
accommodation" under the ADA, and the ADA requires retrofitting to accessibility standards if
retrofitting is "readily achievable," a nebulous standard about which associations might wish to
consult their attorney.
Familial Status and Limits on Age Restrictions
The 1988 amendments also added familial status to protected classes under the FHAA. Familial
status is defined as children under 18 living with parents or others with legal custody, or with a
designee of the parent with written permission, a person who is pregnant or a person who is
seeking custody of a person under 18. There can be no rules, covenants, deed restrictions,
bylaws or agreements that discriminate against families with children, although in limited
circumstances a residential community may be able to adopt rules about families with children, if
they are based on safety considerations (not the convenience of adults). The most immediate
result of this statutory provision reduced the number of "adults-only" communities. The only
allowed exceptions are for housing for older persons, where age restrictions may be imposed, if
they meet the statutory requirements of the Housing for Older Persons Act. Many associations
have discovered that rules that were in effect for years have been challenged based on this
provision of the FHAA.
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•
Examples of Rules That Disproportionately Impact Children
Pool rules:
o “Adult’s only” swim times or “adults-only” pools are generally held to
discriminate against children
o Minimum ages for using the pool without supervision are enforceable to the
extent that they are geared to health and safety concerns. A 10-year old may need
supervision either because of limited swimming ability or because of dangerous
behavior on the pool deck area. On the other hand, it may not be reasonable using
health and safety as a standard to require a 16-year old to be supervised by an
adult.
•
Rules regarding children playing:
o Rules that are age neutral and that are addressed to health and safety issues are
generally enforceable (e.g., prohibiting skateboarding or riding bicycles in a
parking lot where the rider may not be visible to people driving cars, which rule
applies to adults as well as children)
o Be wary of creating rules that result in no portion of the common areas available
for children to play
•
Occupancy restrictions:
o Certain occupancy restrictions may have a disparate impact on families with
children. Although examined on a case by case basis, the Department of Housing
and Urban Development has held that a two person per bedroom limit is generally
reasonable. However, this is not an absolute standard and associations which are
considering adopting an occupancy standard might have to be more generous, if
units or bedrooms are large.
•
Group homes
In most cases, associations will not be able to use their governing documents to prohibit
group homes. Typically, association documents refer to "single family dwellings" and
refer to "residential use." A number of courts have concluded that restrictions mandating
"single-family dwellings" are structural restrictions and not use restrictions. A Colorado
Supreme Court case addressed whether operation of a group home for developmentally
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disabled children violated a residential use restriction in restrictive covenants. (Double D
Manor, Inc. v. Evergreen Meadows Homeowners Association, Inc., 773 P.2d 1046
(1989)) The covenant in question included a structural use restriction (one "single-family
dwelling") and a use restriction ("residential use"). The court held that use of property as
a home for developmentally disabled children was a residential use for purposes of the
restrictive covenant, even though the owner of the property (a corporation) charged a fee
for residence in the home. The court also cited Colorado statutory provisions that
provide that a state-licensed group home for eight persons with mental illness is a
residential use of property for zoning purposes and that a state-licensed group home for
eight developmentally disabled persons is declared to be a residential use for zoning
purposes. (C.R.S. 31-23-303(2)(a) and (2)(b.5)) The court relied on these statutory
provisions to establish the intent of the legislature to establish public policy.
The United States Supreme Court reviewed a case in which a zoning restriction limiting
occupancy of dwellings in a single-family zoning district to not more than four unrelated
persons, after a corporation requested an accommodation for a group home for recovering
drug and alcohol abusers. (City of Edmonds, WA v. Oxford House, Inc., 514 U.S. 725
(May 15, 1995). The court concluded that the rule was not a true occupancy restriction
under the terms of the FHAA because it did not equally apply to related persons.
Common Issues as Addressed by Case Law: Parking and Pets
•
Parking Accommodations
o Association covenants do not supersede the FHAA.
Gitleman v. Woodhaven Condo. Ass’n., Inc., 972 F.Supp. 894 (D.N.J
1997). Court rejected Association’s argument that master deed
(declaration) did not permit the association to grant Gittleman an
accessible space.
Shapiro v. Cadman Towers, Inc. 51 F.3d 328 (2nd Cir. 1995). Assigning
Shapiro a parking space immediately rather than forcing her to wait on a
list for an undetermined amount of time is a reasonable accommodation to
a policy of assigning spaces on a first come first served basis.
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Astralis Condominium Ass’n v. Secretary, U.S. Dept. of HUD, 620 F.3d 62
(1st Cir. 2010). Puerto Rico condominium law requiring unanimous
consent to convey common elements. Court held that to the extent that
state statutes or local ordinances undercut the FHAA’s anti-discrimination
provision, the former cannot be enforced.
o Handicapped individual entitled to “equal opportunity,” not a preference.
•
Sporn v. Ocean Colony Condominium Ass’n, 173 F.Supp. 2d 244 (D. N.J.,
2001). Court concluded that association’s request for owner to “trade in
their deeded parking space for an Association owned space closer to the
building entrance” is a reasonable request. When asked why he needed
two spaces, Sporn responded that “because during the summertime we
couldn’t get any parking for any of our family that came down.” These
comments reveal that request for accommodation was coupled with a
demand for special treatment unrelated to Sporn's handicap.
Service and Support Animals
o Under the ADA, a “service animal” is limited to “trained” dogs and in some
cases, miniature horses, and excludes emotional support animals entirely. (24
C.F.R. 36.104) On the other hand, HUD has rejected the ADA definition and
holds that in the Fair Housing Act context, disabled individuals may make
requests for reasonable accommodations for assistance “animals” of any kind,
including emotional support animals, which require no training. (HUD
Memorandum, February 17, 2011)
Hawn v. Shoreline Towers Phase I, Ass’n, Inc. 209 WL 691378 (N.D. Fla.
2009), aff’d at 347 Fed. Appx. 464 (11th Cir. 3009). A psychologist wrote
a letter for Hawn prescribing a service animal to help him with his
“emotionally crippling disability.” The condominium manager told Hawn
that the board’s attorney needed more information, including
documentation to support Hawn’s disabilities and the qualifications of the
psychologist and the chiropractor. In the court case, the psychologist and
chiropractor later admitted that Hawn wrote much of the letters they
signed for him. The court found the letters essentially useless as
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evidence. The court indicated that the Association could request
additional information in order to conduct a meaningful review.
CCRD Determinations:
•
Request to park RV in driveway because house is not inhabitable due to mold. Parking
an RV in violation of municipal ordinance is not a reasonable accommodation.
•
Request to install window air conditioner in violation of covenants to accommodate
breathing difficulties. “Reasonableness does not entail an obligation to do everything
humanly possible to accommodate a disabled person. Under the facts at issue here, the
request was not reasonable. The Complainants had the opportunity to research airconditioning units that would alleviate Complainant [name] symptoms and be in
compliance with the covenant before purchasing the window unit, however, the
Complainant failed to do so."
•
Request to waive fines for extended parking in front of unit. "The Complainant alleged
that the ability to keep his red pickup truck outside of his unit lessens the effects of his
mental disability, as he can visually see the truck so he is not worried about it; and it
further enables him to have easy access to the truck to go hunting, which is an activity
that the Complainant contends ameliorates the effects of his mental disability."
Complainant has a second pickup truck used for everyday transportation. Complainant
requested that fines be waived for parking in violation of rules. There was insufficient
evidence that the Association denied a reasonable request.
•
Owner filed discrimination complaint because of her sex (female). Based on statements
provided by the Complainant's witness, CCRD concluded that there was evidence to
suggest that a board member referred to the Complainant as a "f… bitch" during a
conversation he had with the witness. However, CCRD concluded that there was
insufficient evidence to show, that the treatment alleged by the Complainant was severe
or pervasive enough to amount to discriminatory harassment based upon the
Complainant's sex, noting that the Board member denied that he even made the alleged
derogatory statement during his discussion with the witness, and the statement, if made,
was not directly stated to or in the presence of the Complainant.
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Administrative Complaint Procedures
The FHAA provides that persons who believe they have been subjected to a discriminatory
housing practice may file a complaint with either HUD’s office of Fair Housing and Equal
Opportunity or with the Colorado Civil Rights Division. HUD is mandated to refer housing
discrimination complaints to any state or local public agency, if that agency has been certified as
"substantially equivalent" which the Colorado Civil Rights Division has been so certified.
Typically cases involving common interest communities are handled by the Colorado Civil
Rights Division.
The administrative procedures under the FHAA are expedited. The respondent is to be notified
of a complaint within 10 days of when it is filed and the respondent then has 10 days to answer
the complaint. The investigation is limited to 100 days unless it is impractical to complete the
investigation in that time period. During the period from when a complaint is filed, and ending
when a formal charge or dismissal is issued, the Civil Rights Division will attempt to conciliate
the complaint to achieve an agreement satisfactory to all parties that is also consistent with
public policy and the purposes of the fair housing acts. After investigation is complete, a
determination is made as to whether there is probable cause (reasonable cause under federal law)
to believe that a violation of the FHAA or the Colorado Fair Housing Act has occurred. If a
determination is made that reasonable cause exists, before issuing a charge, the Division director
or his designee will first order the complainant and respondent to “participate in compulsory
mediation.” If mediation is not successful, then the complaint will be noticed for a hearing.
(C.R.S. § 24-34-306(2)(b)(II)). If a determination is made that probable cause (reasonable cause
under federal law) does not exist, the complaint will be dismissed.
Within 20 days after a charge is issued, the complainant, the respondent or any other aggrieved
party may elect to proceed with a civil action in lieu of an administrative proceeding. If such
election is made, the case is referred to the Attorney General to file a civil action, which must be
filed within 30 days.
Complainants may bypass HUD and the Civil Rights Division and file directly in federal or state
district court. Complainants may also decide, at any stage of the conciliation and investigation
process, to pull their complaint and file directly in court, unless a conciliation agreement has
been reached with the consent of the complainant or unless a hearing before an Administrative
Law Judge has commenced.
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Damages
Administrative law judges may only award civil penalties that are paid to the government to
vindicate the public interest. Administrative law judges may not award punitive damages.
Courts may award compensatory damages as well as punitive damages.
Practice Pointers for Owner Associations
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The applicant for an accommodation or modification is not required to be an owner of the
property or the person in need of an accommodation or modification. A person who is
not an owner may make the request or a person acting on behalf of a disabled individual
may make the request.
•
Do not request medical information if the disability is obvious. However, the association
can request information even if the disability is obvious, if it is not obvious how the
requested modification will help the individual use and enjoy their dwelling.
•
The health care provider is not required to be a physician. A doctor or other medical
professional, a peer support group, a non-medical services agency, or a reliable third
party who is in a position to know about the individual’s disability may also provide
verification of a disability.
•
Respond to applicant in writing on a timely basis with appropriate documentation.
•
If there is no request, there generally is no obligation to make an accommodation.
However, do not deny a request solely on the basis that the resident failed to follow the
formal procedures. If a verbal request is made, provide applicant with proper forms and
request supporting documentation – do not deny solely on the basis that the request was
verbal. Help the applicant complete the forms if necessary. If the association knows, or
in the exercise of reasonable judgment should know, that a person is disabled and needs
an accommodation, it would be prudent to offer the accommodation (e.g. a person with a
mental illness who is too impaired to make a formal request).
•
Do not automatically deny a request because the person was in violation of the governing
documents at the time of the request (e.g., they brought a cat in a no pet community and
when notified it was not permitted, then requested an accommodation). Err on the side of
caution and grant a temporary waiver for an existing violation while the applicant obtains
the requested information.
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•
If there are questions regarding the handicap or the nexus between the handicap and the
requested accommodation or modification, engage in an interactive process with the
applicant.
•
The applicant will not generally be liable for maintenance costs of approved
modifications to the common areas.
•
The applicant will not generally be liable for the cost of accommodations (e.g., cost of a
sign designating a handicap parking space or cost of having additional striping for
handicap parking space).
•
Document denials thoroughly (e.g., if cost of request creates an unreasonable financial or
administrative burden on the association, explain why).
•
Remember that the law allows many disabled persons to enjoy their homes to the same
extent that those without disabilities can enjoy their homes. Certainly, there will always
be some people who abuse this remedial statute. Try not to be jaded by the minority that
misuses a remedial law that has benefited many people by penalizing deserving people.
•
Be reasonable.
Conclusion and Recommendations
It is important for associations and their legal counsel to know, understand and comply with fair
housing laws.
The best way for associations and their managers to comply with the law is to be proactive and
learn about the fair housing act. Financial sanctions may be imposed against an association for
failing to comply. Persons covered and denied their rights may suffer physiological and
psychological impacts.
In a recent case involving a "companion pet" out of Hawaii, decided by the United States Court
of Appeals Ninth Circuit, the association prevailed based on the facts of the case. (The dog that
was the subject of the litigation was named Einstein.) There is a lesson in the court’s conclusion
set forth in its opinion:
Although humor can be found in these facts, this story is more tragic than comic.
This litigation undoubtedly took a substantial toll on the individual parties and
other persons connected with them and with this condominium project, not only
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in terms of time and expense, but also from the disharmony and aggravation that
burdened their lives. Racing to the courthouse is not always the right approach.
Albert Einstein was known not only as a genius but also as a peaceful and patient
man. On conflicts large and small, he once remarked, "In the last analysis, every
kind of peaceful cooperation among men is primarily based on mutual trust and
only secondly on institutions such as courts of justice and police." Einstein’s
owners would do well to heed that advice.
While the court’s note may be aspirational, associations are well advised to take into
consideration not only the legal merit of their position, but also the economic and emotional
impact of decisions on the parties and the community as a whole. At least in the abovereferenced case, the court implies that the association won its legal battle, yet there was also a
loss to the community.
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