We’ve written many times before that community associations are bound by the provisions of the Fair Housing Act. There is a lot of information available about the Fair Housing Act, who it applies to, what it takes to comply, and what the consequences are for failure to comply. Notwithstanding all of the available information, some communities and managers (and apparently their legal counsel) still don’t “get it.”
HUD recently announced a decision in connection with a complaint involving familial status. In the case, the association had rule in effect since 1998 known as the “children rule” which prohibited children from playing in the common areas. In July 2011, the association amended the rules to prohibit riding bicycles, tricycles, scooters, skateboards, skates and rollerblades; playing; picnicking; and sunbathing in the common areas.
The homeowner in the community had custody of her two minor grandchildren. The association, through the managing agent, sent multiple notices to the homeowner, citing her for violating the common area rule. In April 2012, the property manager wrote to the homeowner, asking her to take the comfort of other residents into consideration and have the children observe the association’s rules. The letter stated that, while playing on the grass or the sidewalks is allowed, playing in the landscaping and the trees is not allowed. The manager urged the homeowner to take the children to a park or school off-site to play.
Later that month, the association placed notices on the community bulletin boards that stated, “Kids may not play in the garage, driveway, parking lots, or by the pond. If kids are in the grass, they may not dig, ride bikes, slide down hills, or in any way hinder the growth of the lawn. They cannot play in the trees or planted areas and may not jump off balconies.” The notices also said the sounds of children playing near a building can be disturbing to other residents.
The homeowner filed a complaint with HUD. HUD’s investigation revealed that, while the homeowner was the only resident threatened with a fine for a rule violation, the association’s management company had sent 13 rule violation notices citing the children rule to families with children between 2005 and 2011. No violation notices concerning this rule were sent to households without minor children. HUD found no record of a violation notice being given to an adult for violating the restrictions against using sidewalks or grass or for playing in the courtyards. Further, although adults routinely rode bicycles in the common area, no adult was cited for doing so.
On March 20, 2015, the Department of Justice announced a settlement with the association, the management company and the property manager. The association agreed to pay $10,000 in civil penalties to the United States and a total of $100,000 in compensation to six families with children who experienced discrimination. In addition, the association will adopt and implement a new anti-discrimination policy, and all board members, the property manager and other staff will undergo training on the act, with a specific emphasis on discrimination based on familial status.
We talk frequently about the consequences of failure to comply with the Fair Housing Act, including the potential for payment of damages, fines and penalties, and attorneys’ fees, often times none of which is covered by the association’s insurance carrier. While these can be substantial, they are sometimes dismissed by boards or managers as “that won’t happen to us.” Yet, invariably, when we talk about attending sensitivity training, and board members and managers having to take time out of their day to learn what it takes to comply with the Fair Housing Laws, that gets their attention. Don’t be that guy! Be proactive; learn about the Fair Housing Act and requirements for compliance. If in doubt, check with your legal counsel. Or, imagine yourself sitting in class.