While many civil rights laws exist, the two that we are asked to address most often are the Fair Housing Act and the Americans with Disabilities Act. In this edition of e-Lawyer we will give a very brief summary of how each of these two laws relate to Community Associations, including, but not limited to, HOAs and condominiums.
FAIR HOUSING ACT:
The Fair Housing Act ('FHA') was created to prohibit persons from discriminating against others in real estate matters (e.g. sales, leases, mortgages). Until the Act was amended in 1988, the impact of the FHA on Community Associations had been minimal because the protected classes were obvious and well understood. Those classes were:
However, in 1988, the impact of the FHA on Community Associations changed dramatically when the following two protections were added:
Not only were these two classes new, they were somewhat subjective in nature and contained exceptions relating to age restrictions which required the adoption of administrative rules to establish what could and could not be done.
For purposes of the operation of Community Associations, the FHA now contains the following restrictions beyond those imposed by the original classifications (e.g. race, religion, etc.):
A. The familial status provision has eliminated all restrictions that prohibit children from being residents of communities unless such communities can qualify under the few exemptions permitted by the law. Two examples are communities where all residents are 62 years of age or older and 'housing for older persons' where at least 80% of all units or houses have one or more residents who are at least 55 years of age or older.
B. The handicap status provision requires Boards to make accommodations in existing rules (e.g. parking space locations) as may be reasonably necessary to afford handicapped persons the equal opportunity to use and enjoy their dwelling. Additionally, Boards must permit handicapped persons (at the handicapped person’s expense) to make alterations to their lot or unit and to the common property if such alterations are reasonably necessary to accommodate their disabilities (e.g. wheelchair ramps).
The scope of this e-Lawyer does not permit a full discussion of the various obligations imposed on Community Association’s by the FHA. However, it is critical to understand and remember that Community Associations are always required to comply with the FHA and that severe penalties can result from violations thereof.
THE AMERICANS WITH DISABILITIES ACT:
Like the FHA, the Americans with Disabilities Act ('ADA') contains requirements that property be modified to allow access to and use by disabled persons. However, unlike the FHA, these requirements only apply to those properties that are for public use.
Accordingly, if a Community Association operates only private residential property, the ADA should not apply. If, however, the Community Association operates areas that are open to public use, they may likely be obligated to alter those properties, at their expense, to comply with the ADA requirements. Examples of such 'public use' may be golf courses, restaurants and club houses that are rented to the general public for weddings etc.
As above, the scope of this e-Lawyer does not permit a full discussion of the ADA. However, it is important to understand that Community Associations are not necessarily required to comply with the ADA. Instead, a case by case analysis must be made to determine if the area in question is 'public' or 'private'.
We have only addressed the FHA and the ADA in this e-Lawyer. Please remember that there may be other Federal, State and Local civil rights laws that will impact the operation of your community.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.