Is HUD Stepping Up Fair Housing Enforcement Against HOAs?

Is HUD Stepping Up Fair Housing Enforcement Against HOAs?

December 2011
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On Oct. 18, 2011, the U.S. Department of Housing and Urban Development (HUD) announced it was charging a Philadelphia condominium association with violating the Fair Housing Act for refusing to revise its "no pets" policy as a reasonable accommodation for condominium residents with disabilities who required assistance animals.

That action followed an Oct. 11, 2011, HUD complaint against a Park City, Utah, HOA, property management company, and group of condominium owners, who allegedly refused to accommodate a Gulf War veteran⁄tenant who required an emotional support dog because of a disability.

Has the HUD quietly placed HOAs in its sights? "We're just in the business of enforcing the Fair Housing Act and making sure people know it's illegal to be discriminated against if they're disabled and ask for a reasonable accommodation," says Shantee Goodloe, HUD public affairs specialist.

Here, we discuss HUD's recent cases and the lessons for HOAs.

Disability Discrimination: Number One Complaint

If it seems as though HUD's pursuing HOAs, that may because Americans continue to file a large number of discrimination complaints. "Housing discrimination based on disabilities has been the number one complaint for the last four years, ahead of race," says Goodloe, who notes that the Fair Housing Act protects people from discrimination on the basis of race, color, disability, national origin, religion, sex, and familial status. "It could be against a condo association for refusing to give someone a parking space or for refusing to allow someone with a disability an emotional support pet. Complaints run the gamut."

More than 10,000 fair housing discrimination complaints were filed in fiscal year 2010, according to HUD' s Annual State of Fair Housing Report, issued in August 2011. Of the 10,155 complaints, 48 percent alleged disability discrimination, 34 percent alleged discrimination based on race, and 15 percent alleged discrimination based on family status. Those numbers were consistent with the number and type of complaints received during the previous three years, the report says.

Why are there so many disability–based complaints? "We have an aging population, and more people are educated to know it's against the law for a housing provider not to give the disabled a reasonable accommodation," says Goodloe. "We've done outreach, and people know if they don't get the reasonable accommodation they request, it's against the law."

James R. McCormick Jr., a partner at Peters & Freedman LLP in Encinitas, Calif., who represents associations, says the growth in complaints to HUD may also be because it's easier—and costs nothing—to file a complaint with HUD than to pay a lawyer to press a claim. "Owners are looking at HUD as a way to enforce their rights without hiring an attorney; HUD will enforce the laws for them," he says. "Just four to five years ago, it was a little more in the association's favor, where the association could ask, 'What's the nexus between what you're requesting and the disability?'" he explains. "Now, if an owner can show a disability, the association is going to be hard pressed not to give an accommodation."

HUD's Recent Cases

The two October cases filed by HUD against HOAs involved a request for assistance animals. In both, HUD alleges the HOAs made the requests overly burdensome on HOA residents.

In the October 11 case, HUD claimed that a Gulf War veteran who asked for an emotional support dog was improperly charged fees and fines to get approval. HUD contends that Fox Point at Redstone HOA in Park City, Utah, required the veteran, who was living as a tenant in the association, to pay a registration fee, provide proof of liability coverage, and sign a release allowing the HOA to obtain his confidential medical records. He provided medical documentation of his need for the assistance animal and secured liability insurance. However, he refused to consent to the HOA's request for access to his private medical information, and he refused to pay the $150 fee.

HUD says that even after Fox Point conceded the dog was medically necessary, it continued to demand the veteran pay the fee. It also levied a number of fines against the condo owners who were the vet's landlords because of the presence of the support dog. The condo owners, in turn, refused to renew their tenant's lease until he paid the fee and the fines, causing the vet and his wife to move rather than pay.

HUD notes that the Fair Housing Act prohibits HOAs from charging such fees and fines. It also bans HOAs from requiring the disabled to obtain liability insurance and provide their medical records.

Err on the Side of Caution

What's the lesson? You need to know fair housing law before your board responds to a request for an accommodation. HUD has posted guidelines and issued a joint statement with the U.S. Department of Justice that taken together serve as a primer on fair housing rules. When you're faced with a request for accommodation, err on the side of being accommodating rather than rigidly interpreting your governing documents.

"I've seen where associations haven't approved reasonable ingress and egress to a home for a prospective purchaser or a current tenant, and I know it's an issue," says Bill Worrall, vice president of The Continental Group, which is based in Hollywood, Fla., and manages 1,300 condominium and homeowner associations totaling 310,000 residential units. "The outcome is that the HOA has been sanctioned and⁄or fined. I don't know why an HOA would not approve modifications to a home that are required under any federal law. If I'm managing a community in that scenario, we'd make sure we understood the federal law in conjunction with the association's governing documents."

McCormick agrees. "I think it's something associations should be careful of," he says. "If they can give an accommodation, it would behoove them to do so."

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