February 11, 2021
SCOPE OF THIS ARTICLE
The purpose of this article is to educate owner associations about fair housing law and to highlight issues that commonly come up in common interest communities. This article serves as a guide for associations so that they can stop and consider the impact of certain decisions in light of fair housing laws, and ask more questions when appropriate. Once informed and aware of the issues, associations can better comply with fair housing laws. This article is not intended to be a comprehensive review of all aspects of the Fair Housing Amendments Act of 1988. Colorado also has a Fair Housing Act which is older than the federal act, and which differs from the federal fair housing act, as detailed below.
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 Hous
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,” nor 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 Biden administration recently announced that gender identity and sexual orientation now fall into the FHA protected class of sex; preventing discrimination against the LGBTQ communities. You can read more on this announcement here.
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 are mandated to accept and respond to requests for modifications and accommodations by residents who meet the definition of a person with a handicap.
HANDICAP AND DISABILITY ISSUES UNDER FAIR HOUSING
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 “substantial” 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 and potential confusion.
The United States Department of Housing and Urban Development (HUD) addressed this amorphous subject by releasing updated guidelines pertaining to emotional support animals (ESA) in January 2020. In light of prior abuses of the system, the update allows a housing provider to request additional evidence and documentation over and above internet-obtained ESA documentation. Further, the requested ESA must be one that is commonly kept in households. By contrast, it is important to remember that a “service animal” is specifically defined as a dog that has been trained to do work or perform tasks for an individual with a disability. For more specifics on this subject, refer to our article HUD Updates its Guidelines Relating to Emotional Support Animals.
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, and
- That the accommodation would not substantially alter the nature of the housing offered.
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. 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. 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 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 or 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.
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 by 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:
- Requiring applicant to provide a reasonable description of the modification,
- Requiring applicant to provide reasonable assurances that the work will be done in a workmanlike manner, and
- Requiring 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 fewer 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:
- 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
- Reinforced walls in bathrooms for later installation of grab bars
- Usable kitchens and bathrooms
In newer communities constructed after 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 need to understand 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 this is “readily achievable,” a nebulous standard about which associations might wish to consult their attorney.
FAMILIAL STATUS AND FAIR HOUSING
Protection of families 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.
Examples of Rules That Disproportionately Impact Children:
- Pool rules:
- “Adults-only” swim times or “adults-only” pools are generally held to discriminate against children.
- Minimum ages for using the pool without supervision are enforceable to the extent that they are geared to health and safety concerns.
- “Adults-only” swim times or “adults-only” pools are generally held to discriminate against children.
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:
- 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 that apply to adults as well as children).
- Be wary of creating rules that result in no portion of the common areas available for children to play.
- Occupancy restrictions:
- 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. This is not an absolute standard, and associations that 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 disabled children violated a residential use restriction in restrictive covenants. The covenant in question included a structural use restriction (“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. 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 limited 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. 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.
HARASSMENT
Associations should be aware of, and careful not to engage in, actions which could be deemed harassment. On October 14, 2016, a HUD rule went into effect which amended fair housing regulations to provide standards for use in investigations and adjudications of allegations of harassment against those within a protected class or status. HUD’s rule specifically defines two separate types of harassment. “Quid Pro Quo” harassment occurs when a person is subjected to an unwelcome request or demand because of the person’s protected characteristic and submission to the request or demand is made a condition related to the person’s housing.
The “this for that” arrangement can be explicit or implicit. “Hostile Environment” harassment is defined as subjecting a person, because of their protected characteristic, to unwelcome conduct that is sufficiently severe or pervasive such that it interferes with or deprives the victim of his or her right to use and enjoy the housing. The unwelcome conduct can be physical, written, verbal, or other conduct.
In reviewing hostile environment complaints, the totality of the circumstances will be taken into consideration. This includes the type and severity of the conduct, the number and frequency of incidents, and the relationship of the parties (i.e. is it a relationship where one party is in a position of influence). Under these rules, an association can be directly liable for its own conduct. It can also be held vicariously liable for its agents’ conduct if it knew, or should have known, of the harmful conduct, had the power to correct it, and failed to do so. It is thus a broad swath of potential responsibility, and an association should be careful to actively educate itself and its agents on how to avoid costly missteps.
COMPLAINTS (ADMINISTRATIVE) ALLOWED TO BE FILED
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. 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, a charge will be issued. 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.
PRACTICE POINTERS FOR OWNER ASSOCIATIONS AND COMMUNITY MANAGERS
- 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, you 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.
- 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.
- 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 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 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 above-referenced case, the court implies that the association won its legal battle, yet there was also a loss to the community.
Finally, as noted in this article, this area of the law is often not black and white. There are nuances and subjective determinations.
If you have questions about a request from a resident, you should seek additional assistance from the agencies who enforce the fair housing laws and from qualified legal counsel for the Association.
