A person’s home is intended to be their sanctuary from the public. As such, situations which arise that affect a person’s ability to feel safe and secure in their home are particularly harmful. This is, in part, the basis for the protections provided in the Fair Housing Act. Through recent amendments to the Fair Housing Act, these protections have expanded to make persons (or entities) liable for a third party’s discriminatory conduct that the person had the power to correct. This means, in the context of community associations, an association could be held liable for the discriminatory conduct of a homeowner within the community if the association had the power to stop it. In this article, we will look at what needs to be proven to bring a discrimination claim against a community association and the relief that can be granted for such a claim.
- Community Association’s Liability for Discrimination
Pursuant to 24 C.F.R. §100.7(a)(1)(iii), a community association will face liability by: 1) failing to take prompt action to correct and end a discriminatory housing practice by a third-party; 2) where the person knew or should have known of the discriminatory conduct and; 3) had the power to correct it. For any discrimination claim, the discriminatory conduct must be conduct which is related to race, color, religion, sex, sexual orientation, familial status, national origin, or handicap.
- Discriminatory Housing Practices in the Context of Community Associations
A “discriminatory housing practice” is defined as “an act that is unlawful under section 804, 805, 806, or 818 of the Fair Housing Act.” 24 C.F.R. §100.20. The relevant “discriminatory housing practices” in a community association will generally be in one of two categories: “quid pro quo harassment” or “hostile environment harassment.”
24 C.F.R. §100.600 defines quid pro quo harassment is defined as:
an unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to: The sale, rental or availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction. An unwelcome request or demand may constitute quid pro quo harassment even if a person acquiesces in the unwelcome request or demand.
An example of quid pro quo harassment in a community association would be if an association requires a homeowner to pay additional amounts to use common areas, and this demand is based on the homeowner’s race, color, religion, sex, sexual orientation, familial status, national origin, or handicap.
24 C.F.R. §100.600 defines hostile environment harassment as:
unwelcome conduct that is sufficiently severe or pervasive as to interfere with: The availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction. Hostile environment harassment does not require a change in the economic benefits, terms, or conditions of the dwelling or housing-related services or facilities, or of the residential real-estate transaction.
Examples of quid pro quo harassment include offensive remarks, being threatened, posts on social media, yelling, throwing items, defacing property, taunting, and posting signs. Again, these actions must be related to a homeowner’s race, color, religion, sex, sexual orientation, familial status, national origin, or handicap.
- The Community Association’s Power to Correct
As stated above, a community association could be liable for a discriminatory housing practice of a homeowner in the community if the association has knowledge of the discriminatory conduct and does not correct it. Community associations are provided the power to correct discrimination in their communities through the enforcement of the CC&Rs. Most CC&Rs include provisions related to nuisance or illegal behavior, and these provisions provide a basis for the community association to correct discriminatory conduct in the community.
As such, when a community association becomes aware of potential discrimination, it must act promptly to investigate the discrimination. If the discrimination is determined to be valid, then the association must take enforcement action against the individual(s) committing the discrimination. Failure to promptly respond, investigate, and take corrective action will open the community association up to liability on a discrimination claim.
- Relief Provided for a Violation of the Fair Housing Act
The types of relief that can be granted for a violation of the fair housing act are punitive damages, actual damages, injunctive relief, and attorneys’ fees and costs. 42 U.S.C. §3612(c). Actual damage includes anything from damage to someone’s property to pain and suffering. As such, it can be very costly for a community association to ignore discriminatory conduct that occurs in the community.
Community associations and their Board of Directors should be aware of the potential liability that the association faces when discrimination occurs in their community. Similarly, homeowners in the community should be aware that they have grounds to bring a discrimination claim against not only the individual who committed the discrimination, but also against the community association if the community association is aware of the issue and fails to promptly respond.
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