Family protected from discrimination

The laws governing handicap status, disabled rights, minority discrimination etc., all arise from Federal Civil Rights laws. (42 USC Section 3504 et. seq.) most cogently defined by the Fair Housing Amendments of 1988 (to Title VII of the Civil Rights Act of 1963) Protections were also built-in to protect the "family" as an institution from potential housing discrimination, as well.

Essentially, the laws of the late 80s correspondingly adopted in some form by the states, governs how Associations are required to treat people who claim special status under one of many protected classes.

It is worth revisiting this topic periodically to see if any major changes have been enacted by either governmental agencies or the courts. It is such a highly sensitive area that one inappropriate move by an Association board or property owner can result in a very unfavorable and expensive result.

Here the major areas of concern:

• Access to facilities -- A common topic of discussion for Associations is occupancy limits. How many people are too many? Does local government have a limitation based upon square footage, bedroom count; is it based upon health and safety concerns, etc.?

Restricting or limiting the number of occupants of a unit can be viewed as violative of the underlying principles of protecting family status. For a period of time it appeared that these types of restrictions would be unenforceable as they were being challenged on the grounds that they were on their face, discriminatory. However, recent legal opinions now seem to focus on a less restrictive view of these issues as to 1) whether they are targeting or negatively impacting children and/or 2) such restrictions must be based upon behavior, safety, conduct, etc.

Some of the conditons reviewed as allowable for effective rule-making include, parents must act responsibly, amenities such as exercise rooms can have reasonable limitations based on age and even swimming pools can have rules limitations on age, weight and any other condition based upon safety.

It is implicit in all laws governing housing that there is an unqualified right of use, subject reasonable restrictions not abridging someone's legal rights.

To adopt rules to the contrary could result in a civil rights claim at the federal, state, county or local level.

• Older persons -- In 1995, the Housing for Older Persons Act was enacted by Congress,(24 CRR, Part 100) whereby, an exemption was created from discrimination against familial status in addressing the specific housing needs of older people. So long as policies and procedures were adopted that show legal intent and there is adequate documentation to prove older persons are in fact being protected they will not be viewed as violating family status rights. Verification procedures must be built in and the most important part of this act was to protect innocent third-parties from liability. (i.e. managers, accountants, etc.)

The property must have addressed reasonable physical modifications, policy changes and cost considerations prior to implementing age restrictions.

One of the underlying pillars of the original amendments was that physical modifications did not have to be borne by an owner/association and could be charged back to the resident. Major life activities such as walking, seeing, hearing, working, caring for oneself may require specialized amenities. These can be made to be the responsibility of the resident. However, a recent change to the original code now states that the resident no longer has to pay for removal or to undo the modification.

Further, if the facilities such as a clubhouse are open to the public for organizational meetings, bingo, voting, whatever, then the facility is considered "public" and becomes subject to the much more restrictive requirements of the American with Disabilities Act, which governs public facilities and does require the "owner" to pay for any modifications to entrances, bathrooms, etc. Thus, associations must now be very much attuned to what their clubhouses and party rooms are being used for in order to avoid a designation such as "public" facility if they do not want to make these types of modifications at the association's expense.

• Pets -- Pets and pet-owners are not a protected class, but a service animal is NOT a pet. Walking, companion, support animals, in addition to the more traditional seeing and hearing animals are exempt from pet restriction policies either in the declaration or the rules.

It is now permissible to request a health care provider to verify the owner is disabled for the purpose of keeping an otherwise restricted animal.

The objective test is whether this animal will help this person enjoy equal access and enjoyment to the property and facilities.

It is also worth noting that the opinions have stated that a "health care provider" does not have to be a physician. It can even be a licensed physical therapist or anyone acting in a professional capacity.

• Parking -- A frequent source of controversy due to the fact that most communities lack sufficient parking for better or less abled residents. It is a particular difficult situation when someone's status changes from abled to disabled and the current parking situation is inadequate. The decisions are somewhat less restrictive than the original position of "too bad", wherein now, it is expected that if a request for a parking accommodation cannot be honored, then the requirement is a "reasonable alternative".

Unfortunately, there have not been enough cases or direction on what constitutes reasonable in these instances.

In conclusion, a board must be fully informed of its rights and obligations when dealing with these types of accommodations for its residents.

The test is whether, owner or board policy has created a "hostile environment" as is the same test for the workplace. The courts have said that you do not have to have a physical threat to constitute a hostile environment.

It is crucial for a board and the manager to make sure that they are properly advised by legal counsel before enacting or modifying any policy which impacts any owners access to their home or the common facilities.