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Fair Housing Compliance

By Jeffrey A. Barnett, Esq.

Introduction

Americans believe in the fundamental principle of equal opportunity for all citizens. The federal and California laws and regulations seeking to implement the goal of equal opportunity in housing are voluminous. These laws sometimes result in unexpected outcomes. It is important that directors of homeowners associations, managers and professional advisors be generally informed of these legal requirements, and be sensitive to the contexts in which a violation of the fair housing laws might be claimed.

Some of the key federal and California laws and regulations governing fair housing are touched on briefly in Sections II through VII of this article. Readers are cautioned to review the full text of the laws, and to obtain legal advice and counseling concerning these important and complicated issues.


The California Unruh Civil Rights Act

California Civil Code §51, et seq. is known as the Unruh Civil Rights Act. It provides that all persons within the State of California are free and equal, no matter what their sex, race, color, religion, ancestry, national origin or disability, and are entitled to full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever. Homeowner associations are "business establishments" within the meaning of this statute. [O'Connor v. Village Green Owners Association (1983) 33Cal. 3d 790.] The statute provides that a violation of the right of any individual under the Americans with Disabilities Act of 1990 is also a violation of the Unruh Act. A discussion of the application of the Americans with Disabilities Act of 1990 to homeowners associations follows below in Section VI.

The Unruh Civil Rights Act does not require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, to any new or existing establishment, facility, building improvement or other structure to accommodate the special needs of the disabled. Other laws discussed below may require associations to make or allow such modifications, however.

Under Civil Code §51.2, the Unruh Act specifically prohibits discrimination in the sale or rental of housing based upon age. A narrow exception is recognized for housing for senior citizens at Civil Code §51.3 and §51.4. Senior housing is limited to "62 plus" housing or "55 plus" housing. The senior housing project must be qualified based on a number of factors, including the design and construction of the facility, the size and age of the project, and the enforcement policies of the association.

The Davis Stirling Act provides in Civil Code §1368(a)(2) and (b) that if the declaration of restrictions contains a limitation on occupancy, residency, or use on the basis of age in a manner different from that provided in the Unruh Act on senior housing, the association, and owners selling their homes, must provide buyers with a statement that the restriction is only enforceable to the extent permitted by the Unruh Act, and must also specify the applicable provisions of the Unruh Act. [Civil Code Section 51.3.]

Homeowner associations are business entities dealing with a variety of suppliers and vendors including landscapers, building contractors, maintenance personnel, managers, accountants and attorneys. Civil Code §51.5 prohibits business establishments of any kind whatsoever from discriminating against, boycotting, blacklisting, refusing to buy from, sell to or trade with any person in the State, because of race, creed, religion, color, national origin, sex or disability of the person, or of the person's partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers or customers.

A violation of the Unruh Civil Rights Act occurs when anyone denies, aids or incites a denial or makes any discrimination or distinction contrary to §51 or §51.5. The penalty for each offense is actual damages, in an amount that may be determined by the court or jury, and punitive damages up to a maximum of three (3) times the amount of actual damages, and attorneys fees. A party can also obtain preventive relief, including a temporary or permanent injunction or restraining order, against persons engaged in conduct of resistance to the full enjoyment of the rights afforded under Civil Code §51 or §51.5.

Association boards must ensure that their contracting practices and rules enforcement practices do not discriminate or make distinctions based on sex, color, race, religion, ancestry, national origin, or disability. Boards may wish to consider annually adopting a fair housing resolution affirming the policy of the homeowners association not to discriminate on any such basis. Boards should adopt a policy that the association will not respond to rules enforcement requests or complaints about vendors which are "tainted" by linking criticism of conduct or performance with an individual's sex, race, color, religion, ancestry, national origin or disability.


Service Dogs, Guide Dogs, and Signal Dogs

The declarations of common interest developments often contain animal restrictions prohibiting dogs, or limiting certain animals based on their size or weight. The declaration or other rules of the association restricting pets are unenforceable to the extent they prohibit the use of guide dogs, signal dogs or service dogs. Every individual with a disability has a right to be accompanied by a guide dog, signal dog, or service dog specially trained for the purpose. [Civil Code §54.1 and §54.2.] Guide dogs are "seeing-eye dogs" specially trained to assist visually impaired individuals. Signal dogs are dogs trained to alert an individual who is deaf or hearing impaired to intruders or sounds. Service dogs are dogs individually trained to the requirements of an individual with physical disabilities, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair or fetching dropped items.


California Fair Housing Act of 1992

California Government Code §12955, the California Fair Housing Act, also prohibits the owner of any housing accommodation from discriminating against any person because of race, color, religion, sex, marital status, national origin, ancestry or disability of that person. This statute identifies "familial status" as an additional protected category. "Familial status" is defined to mean individuals under 18 years of age who reside with a parent, or other legal custodian. The statute specifically prohibits discrimination against any individual who is pregnant, or is obtaining legal custody of an individual under 18 years of age. The California Fair Housing Act therefore prohibits housing discrimination against individuals or families with children. It also prohibits written or oral inquiries by the owner of any housing accommodation concerning race, color, religion, sex, marital status, national origin, ancestry, familial status or disability of any person seeking to purchase, rent or lease any housing accommodation. This statute makes illegal the printing or publishing of notices, statements or advertisements concerning the sale or rental of housing indicating any such preference.

The Government Code specifically recognizes housing for older persons as exempt from the prohibition against familial discrimination. It identifies as permissible the senior housing facilities allowed by the Unruh Act, noted above, as well as housing sponsored by the Department of Housing and Urban Development.

Enforcement of the California Fair Housing Act may be by administrative action by the California Department of Fair Employment and Housing, or by the California Attorney General. Relief may include access to housing through injunctive or equitable relief, a civil penalty up to $10,000 for a first violation, $25,000 for a second violation and $50,000 for a third violation, and actual damages. Alternatively, an injured party can file a civil lawsuit within two years of the occurrence of the discriminatory housing practice. In a private civil action, the court may award injunctive relief, monetary damages, and civil penalties of $50,000 for a first violation and $100,000 for any subsequent violation, and may award the reasonable attorney fees and costs of the prevailing party.

Government Code §12955(f) prohibits the owner of housing accommodations from harassing, evicting or otherwise discriminating against any person in the sale or rental of housing, when the dominant purpose is to retaliate against a person who opposes practices unlawful under the statute. It is unlawful, under the Fair Housing Act, for any person to aid,

abet, incite, compel or coerce the doing of any of the acts or practices declared unlawful, or to attempt to do so.

Of particular importance to homeowners associations, Government Code §12955(l) prohibits discrimination through private land use practices, decisions and authorizations because of race, color, religion, sex, familial status, marital status, disability, national origin or ancestry.


Fair Housing Amendments Act of 1988

The federal Civil Rights Act of 1968, also known as the Fair Housing Act, bars discrimination in housing because of race, color, religion, sex or national origin. [42 U.S.C. §3601-3619.] More recently, the federal Fair Housing Amendments Act (FHAA) of 1988 was adopted by Congress to recognize disabilities as an additional category of prohibited discrimination in the sale or rental of housing and the furnishing of housing services. The Fair Housing Amendments Act and its implementing regulations also enhance administrative enforcement of the fair housing laws by the Department of Housing, the United States Attorney General, and private individuals. The Act makes it a crime to interfere with housing rights available to persons with handicaps. [42 U.S.C. Section 3631.] Condominium, cooperative and other shared housing is specifically identified in the implementing regulations as subject to the Fair Housing Amendments Act.

Before discussing the conduct which is prohibited by the Act, it is important to understand those "disabled" persons who are protected by the Act. The Fair Housing Amendment Act of 1988 protects (1) individuals with a physical or mental impairment which substantially limits one or more of a person's major life activities; (2) an individual with a record of such an impairment; or (3) an individual who is regarded as having such an impairment, whether or not the individual is in fact so impaired. [42 U.S.C. Section 3602(h); 24 C.F.R. §100.201.] The Act, therefore, protects persons with physiological disorders or conditions, cosmetic disfigurement, anatomical loss affecting a major body system, and mental or psychological disorders, such as retardation or emotional or mental illness.

The Fair Housing Amendment Act obviously also applies to individuals who are visually or hearing impaired or impaired in their mobility. The Act extends to less obviously protected individuals, such as those with epilepsy, cancer, heart disease, diabetes, HIV infection and alcoholism. [24 C.F.R. §100.201(a)(2).] The Act applies where any of these conditions substantially limits "any major life activity" such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working. [24 C.F.R. §100.201(b).]

The Fair Housing Amendments Act makes it unlawful to discriminate on the basis of handicap in the sale or renting of housing. Importantly, the Fair Housing Amendments Act also makes it unlawful to discriminate against any person in the provision of services or facilities in connection with a dwelling because of a handicap of a person or a person residing in or intending to reside in a dwelling after it is sold, or any person associated with that person. The privileges, services or facilities associated with a dwelling would include maintenance or repairs required by the common interest development under the declaration or the Davis-Stirling Act, access to the common area facilities, and participation in association activities.

42 U.S.C. §3604(c) prohibits the making, printing or publishing of notices, statements or advertisements with respect to the sale or rental of a dwelling indicating any preference, limitation or discrimination because of handicap or intention to make any such preference, limitation or discrimination. Therefore, the Act prohibits any written materials expressing to agents, brokers, prospective sellers, renters, or any other persons, a preference for or limitation on any purchaser or renter because of handicap. [24 C.F.R. §100.75(c)(2).] The Fair Housing Amendments Act also prohibits discrimination on the basis of "familial status" in a manner similar to the California Fair Housing Act, discussed above.

Sometimes association representatives make well intentioned comments to prospective buyers to the effect that the property is "not suitable" for children or handicapped individuals. These statements may be based on concerns that the Association lacks proper facilities, that there are potential safety risks, or that there are access problems. These communications are clearly unlawful under the Fair Housing Amendments Act. The Fair Housing Amendments Act also prohibits discriminatory rules regarding common area facilities, such as rules denying the use of the swimming pool to children or the use of facilities to individuals with AIDS.

The Fair Housing Amendments Act creates affirmative duties of housing providers to persons with disabilities, including the obligation to allow certain modifications of existing premises, and the duty to make reasonable accommodations in rules, policies, practices and services to accommodate the needs of the disabled. The failure to perform these affirmative duties is an act of discrimination. [42 U.S.C. Section 3604(f)(3)(A), (B).] This means that the Board has an affirmative duty to bend the rules where necessary to accommodate mentally or physically disabled individuals.

The Fair Housing Amendments Act permits a handicapped resident to make changes to the exterior elements of a building, including the public and common use areas of a building, as well as the residence interior. [24 C.F.R. §100.201.] The Act requires that a handicapped individual, at his own expense, be allowed to make reasonable modifications to enable him or her to make the property more accessible or useable. Examples of such modifications include the installation of fold-back hinges to enable a person in a wheelchair to go through a door, and the construction of a ramp to enable a person in a wheelchair to enter a dwelling unit, lounge, lobby, laundry room, recreational area or passageways among and between buildings.

A homeowners association may require reasonable assurance that such modifications will be done in a workmanlike manner, and that required building permits will be obtained. [24 C.F.R. §100.203(b).] However, the full extent to which an association's architectural control authority can be exercised to control the aesthetics of such modifications is not yet well established in the law. The individual making modifications to public use or common areas may not be legally required to restore the property in the future. [Appendix I to Chapter I, Sub-Chapter A, to 24 C.F.R. §100.203(a).] These rights of modification under the federal Fair Housing Amendments Act are more liberal than those allowed under state law [California Civil Code §1360.] The federal law controls in the event of a conflict. Boards receiving architectural requests for modifications necessary for blind, visually handicapped, deaf or physically disabled residents therefore must consider not only the architectural modification rights of a resident under the Davis-Stirling Act, but also under applicable federal law.

The Fair Housing Amendments Act, as noted, requires associations to make reasonable accommodations in rules, policies, practices or services when necessary to afford handicapped persons equal opportunity to the use and enjoyment of a dwelling, including public use and common area use. [42 U.S.C. §3604(f)(3)(B) and 24 C.F.R. Section 100.204(a).] The "reasonable accommodation" requirement is a potential trap for the unwary. The courts have held that accommodation is "reasonable", and is therefore required, unless it imposes an undue financial or administrative burden on the property owner or requires a fundamental alteration in the nature of the housing program. This reasonable accommodation requirement was found to have been violated when a condominium association refused to allow a mobility-impaired resident to install a wheelchair lift and wooden walkways and to use a golf cart to move about the common areas. Prentis Hall: Fair Housing - Fair Lending Rptr. 25,061(HUD ALJ 1993). Therefore, when individuals with mental disabilities create "nuisance" violations of the CC&Rs, the homeowners association may well be required to relax the ordinary standard of conduct which would be applied to a nondisabled individual.

The Act has been construed by at least one court to require the party controlling the housing to waive enforcement of a parking rule for the benefit of a resident to allow her residential medical care provider to park without paying a usual fee. [U.S. v. California Mobile Home Park Management Co. 107F 3rd 1374 (9th Cir 1997] Parking fees may need to be waived for the benefit of a disabled person or his or her caretaker. Certain, the Act would require an exemption from general parking rules to allow for the creation or use of a special handicapped parking space as near and convenient to the handicapped individual's residence as possible.

The Fair Housing Amendments Act can be enforced in a number of ways. The Secretary of Housing and Urban Development (HUD) may investigate housing practices to determine whether an administrative complaint should be brought. An aggrieved individual or the Secretary of HUD may file a complaint within one year after an alleged discriminatory housing practice has occurred. The complaint must then be answered within ten (10) days of service, and must be signed under penalty of perjury. The complaint may be prosecuted by HUD or referred to a state or local public agency certified by HUD. An attempt to conciliate the complaint is generally required, which can lead to an agreement between the respondent and the complainant. The conciliation agreement can include damages caused by humiliation or embarrassment, attorneys fees, and other equitable and injunctive relief.

HUD also may issue a "charge" on behalf of the aggrieved person to commence formal administrative legal proceedings, or refer the matter to the Attorney General for appropriate action, including criminal penalties. If a charge is issued, the complainant or respondent may elect to have the claims decided in a civil action, in lieu of an administrative proceeding, in which case the matter is litigated in the federal court.

Relief available for violations of the Act includes temporary or permanent injunctions or restraining orders, monetary damages, and civil penalties in an amount not exceeding $50,000 for a first violation, and not exceeding $100,000 for any subsequent violation. In addition, the court has the discretion to allow a prevailing private litigant reasonable attorney fees and costs. In a civil action brought by an aggrieved person for a discriminatory housing practice, the court may award the plaintiff punitive damages, notwithstanding the absence of actual loss to the plaintiff.


Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a broad civil rights law whose purpose is to afford equal opportunity to individuals with disabilities in employment, public accommodations and transportation. Associations employing more than 25 persons are subject to the employer provisions of the Act, and must comply with the detailed provisions of the Act and its implementing regulations protecting employees.

Under the ADA, "places of public accommodation" are regulated. Places of public accommodation (1) cannot deny persons with disabilities the full and equal enjoyment of goods, facilities, services and accommodations; (2) must make reasonable modifications in policies, practices and procedures where necessary to afford goods, services, facilities, and accommodations to individuals with disabilities; and (3) must remove architectural barriers where such removal is "readily achievable", such as installing ramps, grab bars in toilet stalls and creating curb cuts.

A "place of public accommodation" includes facilities operated by a private entity whose operations affect commerce, and fall within certain designated categories, which include senior citizen centers or other social service center establishments and places of exercise or recreation.

The issue of whether a common interest development is a "place of public accommodation" has not been well defined in the law. A HUD publication entitled "Supplement to Notice of Fair Housing Accessibility Guidelines: Questions and Answers about the Guidelines" indicates that HUD has received a number of questions regarding the applicability of the ADA to residential housing, particularly with respect to Title III of the ADA, addressing accessibility requirements for public accommodations. This publication indicates that strictly residential facilities (including the amenities for the exclusive use of residents and their guests) are not considered places of public accommodation, and therefore are not subject to Title III of the ADA. However, the HUD publication further indicates that common areas that function as one of the ADA's twelve categories of places of public accommodation within residential facilities are considered places of public accommodation, if they are open to persons other than residents and their guests. As an example, HUD cites rental offices and sales offices for residential housing as being, by their nature, open to the public, and therefore places of public accommodation that must comply with the ADA requirements in addition to all applicable requirements of the Fair Housing Act.

Some of the categories recognized by the Act as places of public accommodation include the following:

Associations that have facilities like these that are made available to persons other than owners and their guests, should be mindful of the risk that the facility might be viewed as a "place of public accommodation" under the Americans with Disabilities Act, so that architectural barriers would need to be removed.

The ADA may be enforced by a private individual who is denied the required facilities, services or accommodations. Injunctive relief is available to require access to facilities and services or modifications of policies and procedures. [28 C.F.R. §36.501.] The Attorney General also may bring an action to enforce compliance and obtain injunctive relief and monetary damages and civil penalties. Civil penalties may be up to $50,000 for a first violation or $100,000 for any subsequent violation. The application of civil penalties is to be evaluated based on the good faith effort or attempt of the entity to comply with the Act. [28 C.F.R. §36.504(d).] The prevailing party is entitled to reasonable attorney fees and costs.


The Rehabilitation Act of 1973

Residents of federally assisted housing are additionally entitled to fair housing protections under the Rehabilitation Act of 1973 [29 U.S.C. §794] and its implementing regulations, 24 C.F.R. §8.1, et seq. The Rehabilitation Act of 1973 provides in pertinent part that "no otherwise qualified individual with handicaps...shall, solely by reason of his or her handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance". In several cases involving federally assisted housing, residents have endeavored to use the provisions of the Rehabilitation Act of 1973, as well as the Fair Housing Amendment Act of 1988, to prevent enforcement of "no pet" rules. [Woodside Village v. Hertzmark (1993 Conn. Super. LEXIS 1726); Crossroads Apts. Assocs. v. Leboo (152 Misc. 2d 830; 578 N.Y.S.2d 1004; 1991 N.Y. Misc. LEXIS 747); Whittier Terrace Assocs. v. Hampshire (26 Mass. App. Ct. 1020; 532 N.E.2d 712; 1989 Mass. App. LEXIS 30).]


Conclusion

Officers, directors, managers and advisors of homeowners associations must be alert to the application of California and federal fair housing laws in the operation of the homeowners association. The association representatives should not make or appear to support written or verbal statements that violate the housing rights of individuals under these statutes. Unlawful age discrimination provisions in CC&Rs should be removed. Rules discriminating on the basis of age, such as "adult only swimming hours" should be deleted. Requests by disabled residents for accommodations in the association's policies and practices must be carefully considered and made as required federal and state law. Annual consideration of a fair housing policy is recommended to document the commitment of the association to comply with federal and California fair housing laws.

Jeffrey Barnett is an attorney in San Jose, CA who specializes in the representation of homeowners associations. He is a member of the ECHO board of directors and of the ECHO Legal and South Bay Resourse Panels.


Jeffrey A. Barnett, APC practices in the following cities and counties: San Jose, Santa Clara, Sunnyvale, Mountain View, Palo Alto, San Mateo, Foster City, Redwood City, Menlo Park, South San Francisco, Fremont, Milpitas, Santa Cruz, Scotts Valley, Los Gatos, Capitola, Watsonville, Monterey, Carmel, San Carlos, Alameda, San Mateo, San Benito, Stanislaus, and El Dorado.