Important things for Community Associations to Know about the FHA and the ADA [10-16-15]
Important things for Community Associations to Know about the FHA and the ADA
By: Shantrell Lewis, Esq. / Bakalar & Associates, PA
Board members of community associations have a fiduciary duty to the owners within the community. This means that the officers and directors of the association are entrusted to act in good faith, fairness, and honesty, as it pertains to matters on behalf of their members. With regard to housing and other amenities within the community, all owners and their guests must be treated fairly. Community associations should be familiar with Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act or FHA), the Americans with Disabilities Act (ADA), and local county ordinances, and how these civil rights can affect community associations. Community associations must ensure that they do not discriminate against others who are seeking housing, which is a fundamental right to all citizens. Through this article, our goal is to educate communities and help them understand these civil laws and how they apply within community associations.
The Fair Housing Act, as amended, prohibits discrimination in the sale, rental, and financing of dwellings and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (this includes children under the age of eighteen living with their parents or legal guardians, pregnant women, and legal custodians of children under age eighteen), and disability. The FHA is interpreted very liberally to provide protection to the classes of individuals they cover. Many of the provisions of the Fair Housing Act do not usually apply to community associations. However, the FHA requires community associations to make reasonable accommodations to common areas, units and/or lots to accommodate disabled persons. In addition, community associations must make reasonable rules and/or policies that would allow disabled persons equal opportunity to use and enjoy their homes. For example, if someone makes a request for a service animal or an emotional support animal and provides documentation for same, in a community that does not allow animals, the community association must acquiesce. Furthermore, the Fair Housing Act prohibits community associations from any form of discrimination against the protected class of persons in the provision of services or the use of its facilities. See 42 U.S.C. §3604(f). To avoid potential allegations of discrimination, community associations should carefully review their documents and ensure that they apply equally to all residents.
The Americans with Disabilities Act (ADA), was enacted by Congress in 1990 to protect individuals with disabilities from discrimination in access to employment, governmental services and programs, public accommodations, transportation, and telecommunications. The ADA typically does not apply to community associations, unless its facilities are opened to the public. For portions of the property that are open to the public, the community association may be required to install accessibility features, e.g., installing a ramp on the property so that people that use wheelchairs can access certain areas. In addition, once the property is made available for public use, community associations have a continuing obligation to upgrade the property, as needed to provide the necessary accessibility features of its property, so long as they are “readily achievable”. Pursuant to the Americans with Disabilities Act, community associations are required to ensure that its common areas are accessible to disable persons, even before a request is made.
In addition to the FHA and ADA, community associations must also be aware of local and state ordinances and ensure compliance with all of them. If there is any doubt as to what is required, seek legal counsel from an attorney who is well versed in this area. It will save the association the expense and headache of a lawsuit.