Can Enforcing the CC&Rs Equally and Consistently Ever be Illegal?

January 30, 2013

By Curtis G. Kimble.

Has your board ever faced a demand for a “reasonable accommodation” by a disabled resident?  Have you ever heard of a “reasonable accommodation”?  What about a request for a modification to a unit or common area to accommodate a disability?  As explained by the following excerpt from our Utah HOA Law app, if certain requirements are met, granting the request for accommodation or modification is not optional, and enforcing a covenant or rule in such a case can actually be illegal.

Excerpt from RKW’s Utah HOA Law app:

The federal Fair Housing Act prohibits discrimination by landlords and HOAs, as well as others associated with providing housing whose discriminatory practices make housing unavailable (or restrict the use of housing) to persons because of:

•   race or color
•   religion
•   sex
•   national origin
•   familial status, or
•   disability

. . .

Discrimination Based Upon Disability

The Fair Housing Act prohibits discrimination on the basis of disability in all types of housing transactions.  It’s important to realize that discrimination against disabled persons is unlike any other type of discrimination.  At the core of the policy against discrimination is the concept that everyone should be treated equally.  The Act, however, requires that housing providers give special treatment to the disabled when it is necessary to allow them to have an equal opportunity to enjoy their dwellings.

Reasonable Accommodations.

Specifically, a disabled person is entitled to “reasonable accommodations” (exceptions) in the rules, practices, or services of a housing provider (including an HOA) that are necessary for a disabled individual to use or enjoy a dwelling.  So, while uniform enforcement of the governing documents and rules is crucial as a general principle in an HOA, such uniform enforcement is actually against the law when a rule interferes with a disabled person’s use and enjoyment of their dwelling.  For instance, an HOA has a “no pets” policy.  A resident who is deaf requests that the HOA allow him to keep a dog in his unit as a reasonable accommodation.  The resident explains that the dog is an assistance animal that will alert him to several sounds, including knocks at the door, sounding of the smoke detector, the telephone ringing, and cars coming into the driveway.  The HOA must make an exception to its “no pets” policy to accommodate this resident.

When considering a request for a “reasonable accommodation,” an HOA must normally evaluate whether: (1) the individual is disabled, (2) the requested accommodation is reasonable, and (3) the requested accommodation is necessary for the individual to use or enjoy a dwelling.

1.  Disabled.  An individual can be disabled in one of three ways. A disability is: (a) a mental or physical impairment which substantially limits one or more major life activities, (b) a record of having such an impairment, or (c) being regarded as having such an impairment.

The term mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, mental retardation, alcoholism, drug addiction (but current drug users are not considered disabled), chronic fatigue, learning disability, head injury, and mental illness.  The term major life activity may include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, speaking, or working.

2.  Reasonable.  To be reasonable, an accommodation cannot impose an undue financial or administrative burden on the HOA and the benefit of the accommodation to the disabled person is weighed against the burden on the housing provider.  Those things are determined on a case-by-case basis taking various factors into account, such as the cost, the resources of the provider, the benefit of the accommodation, and whether alternatives would meet the disability-related needs.

3.  Necessary.  For a requested accommodation to be necessary for the individual to use or enjoy a dwelling, the requested accommodation must affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.  In other words, there must be a nexus between the disability and the requested accommodation.

Modifications.

The Act also requires an HOA to permit a disabled person to make reasonable modifications to the common area or to a unit in order to afford that person full enjoyment of the premises.  The modification is made at the disabled person’s expense (unless it is to be used by anyone other than that person, or if the HOA requires more expensive materials or options than those proposed by the owner, the HOA pays the difference).  This is in contrast to an accommodation. Accommodations are made by the housing provider (HOA) and can result in an expense to the HOA (unless it creates a financial burden on the HOA).

The same three criteria applicable to reasonable accommodations (disability, reasonableness, necessity) must be met or the HOA is not required to allow the modification.

HUD has given examples of modifications that are typically considered reasonable, which include:

1. widening doorways to make rooms more accessible for persons in wheelchairs;
2. installing grab bars in bathrooms;
3. adding a ramp to make a primary entrance accessible for persons in wheelchairs; or
4. altering a walkway to provide access to a public or common use area.

. . .

This is a tricky area that can be counter-intuitive for boards.  A board should be familiar with and understand the above concepts, but this is definitely one area where a qualified attorney should be consulted prior to a board making any final decision to grant or deny a request for reasonable accommodation.

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Posted by Curtis G. Kimble

Your Single Family Definition Could Land You in Hot Water

October 3, 2012

By Curtis G. Kimble.

The U.S. Department of Housing and Urban Development (HUD) announced recently that it is charging a Florida homeowners association (HOA) and its management company with violating the Fair Housing Act by telling a family of eight that they had too many people living in their townhouse and threatening to evict them if they didn’t reduce the number of occupants based on an occupancy policy that permitted only six people to live in a four-bedroom home.

The federal Fair Housing Act makes it unlawful to deny housing or impose different rental terms and conditions based on disability, race, national origin, color, religion, sex, or familial status. Overly restrictive occupancy policies may unlawfully discriminate against families with children by preventing them from living in a home.

“Homeowners associations and management companies have an obligation to ensure that their occupancy standards do not violate the Fair Housing Act,” said John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity. “HUD is committed to taking action against anyone who unlawfully denies housing to families because of the number of children in the family.”

If a federal judge finds discrimination did occur, the homeowners association and the management company could face up to $16,000 in fines plus damages.

This issue frequently arises as a result of the enforcement by an association of a requirement in the CC&Rs that a unit or lot be occupied by a “single family.”  If the definition of “single family” is too restrictive or narrow, the association could be faced with a discrimination claim and hefty fines from HUD or from the Utah Anti-discrimination and Labor Division.

HUD will look at and often defer to a local ordinance for permissible restriction on occupancy.  In the case above, the county permits up to eleven occupants in the townhome.  So, the Association was not able to point to that ordinance as a defense.  HUD also looks at the size of the unit and number of bedrooms to determine if an occupancy restriction is discriminatory.  In this case, the Association only allowed one and a half people per bedroom.  At least two people per bedroom should be allowed generally (although other factors are relevant, as well).

Pay to Play, Literally?

In a separate matter, HUD charged a Massachusetts condominium association and property management company with discriminating against families with children.  HUD accused them of unlawfully charging fees to parents for allowing their children to play in the common area.

The families were informed by the Association that they were being fined $10 a day for two days for children playing in the common area, $10 a day for two days for allegedly causing damage, $25 to reimburse for the damage and $437.50 for attorney fees. Prior to this, the families had not received any fines or warning, and when an adult resident was having a party on the common grounds, no fine was issued.

It’s illegal to impose different rules and restrictions on families with children, unless they are directly related to issues of safety or health, but even then, caution must be exercised.  Always consult a qualified attorney when adopting or enforcing restrictions that may trigger a discrimination issue.

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Posted by Curtis G. Kimble

A Utah HOA Faces $96,000 in Fines in a Pet Policy/Companion Animal Clash

October 28, 2011

By Curtis G. Kimble

A Utah condominium HOA, its property management company and an individual property manager are facing $96,000 in penalties, plus other amounts, as a result of multiple charges of discrimination brought by the Dept. of Housing and Urban Development (HUD).  HUD is alleging that the HOA and property manager violated the federal Fair Housing Act by refusing to accommodate a resident who required an emotional support dog because of a disability and that they assessed illegal fees and fines against the resident for the presence of the assistance animal.

HUD is charging the association for violating the Act when the association required the resident to pay a “pet registration fee,” provide proof of liability coverage, sign a medical release for the board to obtain his confidential medical records, and when the association levied fines for failure to pay the pet registration fee.  The resident provided medical documentation of his need for the assistance animal and obtained liability insurance, but refused to give the HOA board access to his private medical information or to pay the $150 pet registration fee. Even after it acknowledged that the resident’s dog was a medically necessary assistance animal, the association continued to demand that he pay the fee.

This association and property manager did use an attorney during the events above, which just goes to show how important it is that an association use an attorney that can truly advise the board and not just act as a blunt instrument of enforcement.  In this case, there was little wisdom in pursuing a $150 fee at the risk of incurring $100,000 in fines, especially when the $150 was for a “pet registration fee” and, as we’ve explained in the past on this blog, assistance animals are not considered “pets.”

The Fair Housing Act requires HOAs to make reasonable accommodations to no-pet rules for residents with disabilities who need companion or assistance animals.  Don’t risk hefty fines and penalties, contact us for assistance whenever your association faces this tricky and complex issue.

UPDATE: The Justice Department announced a $20,000 consent decree and settled this case.  See the announcement here.

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Posted by Curtis G. Kimble

Don’t be a Hater! Or Your Peeps Will Accuse the Board of Selective Enforcement

July 22, 2011

As illustrated in this comical but true story: “Chris Brown on Condo Complaints: I’m Being Setup by Haters!” it’s vitally important that an association’s governing documents are in order and that they clearly outline the rights of each owner, including rights to parking spaces.  If parking spaces must be used as handicap spaces at some point due to a Fair Housing request, ensure that the whole process is done legally and properly under the governing documents and the law.  Consult professionals as needed, especially an attorney in the case of a Fair Housing request for reasonable accommodation.

The story in that link above also brings to mind the importance of clear and specific enforcement provisions in the governing documents.  If someone scratches their initials in the elevator, can you fine them?  What about excessive noise or other vandalism?

Perhaps most importantly, this story shows the importance of treating members equally and fairly.  In HOAs, the stakes are high.  Financially, the home is a major investment.  Psychologically, it may be even more important as a safe haven and source of security.  On the other hand, living in an HOA requires some sacrifices of individual freedom for the communal good.  The sacrifices must be fairly shared, however.  Unequal treatment of members who are similarly situated will lead to issues more serious than being called a hater.  The number one problem we see is when personality issues are the impetus behind an enforcement issue, rather than the goal of equal, consistent and uniform enforcement.  Contact us for guidance in any enforcement situation where determining what is fair is causing or may cause difficulty.

Curtis G. Kimble

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Posted by Curtis G. Kimble

Assistance and Service Animal Update

May 6, 2011

To my displeasure, I have found that more and more frequently, a common “counterclaim” to an Association’s enforcement actions (regardless of what the Association is enforcing) is an allegation that the Board has violated the Fair Housing Act (“FHA”).  This blog entry deals with Assistance and Service Animals and recent meetings I have had personally with the Utah Anti-Discrimination and Labor Division on the topic (the “UALD”).

 Please remember, that each case is fact specific and this blog entry is for general information only and should only serve as to alert you as to issues to consider.

 People with disabilities are afforded certain federal and state housing privileges to help them cope and deal with their disabilities.  I think we all can agree that this is a fair, moral and good legal concept.  One of the accommodations that MUST be made is a reasonable accommodation for a service or companion animals, but only if strict conditions and requirements are met.  Owners do not have a unfettered right to have an assistance or service animal.

 First and foremost, “service animals” will not be the topic of the Article.  I do not think anyone would disagree that a visually or hearing impaired individual should not have access to a service animal to help them overcome and live better with their challenges.

 However, the issue becomes much more complicated when a request from an owner is made for an “assistance animal” based on a medical condition that may not be as apparent.  This issues often arises in ‘no pet’ communities.

 If you take anything from this Article it should be that a properly permitted assistance animal is NOT deemed a pet in the eyes of the law.  A rough analogy would be such an animal is just as crucial as a wheelchair.  Thus, your pet policies do not apply.

 I am sure you are wondering what entitles someone to have an “assistance animal” in the first place.  First, they must have a disability which limits a major life function.  This can, and in some cases should, be question.  But be careful as to how you go about finding this out.  As described below, it is a health care provider’s job to make this determination – not the Board’s.  Second, a licensed health care provider must provide a “link” between the disability and the animal that is being requested as an assistance animal.

 Most Associations require their members to have their doctor fill out a form that evidences both a disability and certifies that the animal will be of a therapeutic and helpful nature.  To be very concise, if the health care provider certifies this to be true, then the Association really does not have grounds to question the certification.

 If the Association is presented with the doctor’s note; a prescription form; etc; you do have the right to follow up with the issuing health care provider to make sure it came from them and is legitimate but that is about as far as you are allowed to inquire.

 You have no right to inquire about the nature of the disability and your forms and/or questions should not go down that path.

 You are likely asking yourself “what does John mean by a health care provider?”  A physician’s assistant and nurse, etc., will likely qualify as such.  I have tried to argue in the past that the doctor or health care provider must have some training with respect to whatever type of a disability is being alleged.

 For example, I have personally not agreed with an “ear, nose and throat” doctor giving a prescription for an assistance animal for an emotional condition.  However, I have been told (and we will update this blog as more information develops) that it is the doctor or health care provider who puts their name on the line if they certify something that they cannot diagnose properly.

 Therefore, you are allowed verify that the “note” came from a certain person and that this person is a trained health care professional.  But, in most instances, your scrutiny will stop there.  (There will always be exceptions and issues on this topic – but for now – please use this information as your default mindset.  Another question arises – can a chiropractor prescribe an assistance animal?  More to come).

If you make a request upon your owners for a health care provider’s certification, and you do not get it back within a reasonable time, you do not need to make the accommodation until such note is received.

 If someone wants or has “2” cats, the health care provider must prove a need for 2 cats.

 Further, just because an owner had approval for a prior pet, does not mean that that approval extends to the “next pet.”  For example, if a pet dies or is lost, the owner must make a request again.  Remember, this analysis is all about the current pet being the appropriate pet for the particular challenge of the owner.

 You can ask for a medical opinion about the breed or type of animal and whether or not it truly provides a medical benefit over other breeds or types of animals.  However, be careful.  If someone has a “scary dog” that simply does not mean it cannot be an assistance animal. The key consideration is not the breed, but whether it (1) stays under control; (2) stays on a leash; (3) does not physically attack or threaten other owners; (4) does not unreasonably bark or make noise or (5) cause damage to the common areas, etc., that you cannot reasonably remedy.

 Unless a City Ordinance disallows a certain type of breed of dog or other animal you probably cannot challenge the breed unless it shows violent tendencies or is inherently dangerous. In such cases, I believe the Anti-Discrimination Division will defer to the City and PERHAPS allow you to ban that particular type of animal.

 Questions arise about exotic pets – snakes, etc.  This will be discussed in a follow up entry.

Remember, the accommodation that you must give is not unlimited – the owner must be given a reasonable accommodation.  Not all requests will be reasonable.

If you start on a path of enforcing a pet policy, make sure that it is uniform and consistent amongst all owners with the above considerations for assistance animals.  You should accept both verbal and written complaints from other owners who complain about pets in the community and then do your due diligence to make sure the pet is properly in the community pursuant to the law discussed above and your policies.  Please keep a file on each approved assistance animal.

This topic is a complicated one and this blog entry cannot do it full justice.  Please contact us before engaging in any pet enforcement program or if you simply have assistance and service animal related questions.  As stated above, more to come on pets AND Fair Housing Rules related to swimming pools; weight rooms; etc.

Best regards, John Richards

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Posted by John Richards, Esq

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