Fair Housing 101: Condo Associations & Cooperatives

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Hello, my name is Kathy Clark.
I’m with the Lawyers Committee
for Better Housing. We’ve been working with the state of
Illinois Department of Human Rights to develop a variety of fair housing
trainings and to get them up on the web for viewing
in the future. Today we’re going to cover Fair Housing 101,
directed at condo associations and cooperatives. As usual
when you are viewing something for training and educational
purposes, it should not be considered legal advice and you should consult an attorney
if you need such advice. We’re going to cover fair housing basic definitions, who’s protected, what types of discrimination are
covered under the law. We’ll answer some questions.
We’ll have a special section on disability including accessibility and reasonable accommodations and
modifications. We’ll talk about cases that have been
brought against condos, condominiums…condos and cooperatives and
the cost that can often come with non-compliance
with the Fair Housing Act. We’ll talk about exceptions some best
practices that are recommended for condos and co-ops, why fair to housing testing is
an important component and how complaints are filed.
What is fair housing? Federal law defines fair housing
as the right of all people to live wherever they
choose, have access to seek, purchase, sell, lease or
rent and enjoy the full use of their homes without being discriminated against. Without having
unlawful interference, coercion, threats or intimidation
by owners, landlords, real estate agents or any other persons. There are three types of discrimination: overt, differential treatment
and disparate disparate impact. Overt consists of blatant unfair treatment of someone
because of their membership in a protected class.
Differential treatment is unfair treatment of one person
compared to another because of their membership in a protected class. Disparate impact is a practice or policy that is applied
uniformly but results in a discriminatory effect on
a group of persons in a protected class. In addition such a policy is not justified
by a business necessity. Under the Fair Housing Act which is the federal law also known as
Title 8 of the Civil Rights Act of 1968, which
was later amended to include additional categories. It is illegal to
discriminate against a person group of persons under the
following protected classes. Race, color, national
origin which includes ancestry and basically means where a person or their
ancestors were born. Religion; aspects relating to religious observance
practice and belief. Sex; including sexual harassment,
status as a male or female. It also includes pregnancy-related
allegations and cases dealing with
sexual harassment. Disability, both physical and mental and familial status which is defined as
the presence of children in a family unit. In addition to the protected classes, it is mentioned in the Fair Housing Act
the Illinois Human Rights Act prohibits discrimination based on the following: age 40 over, ancestry; general ancestral background for
instance Hispanic, European etc. The legal status; being married, single,
separated, divorced or widowed. unfavorable military discharge; includes RE3 classification but not RE4 or dishonorable discharge. Military status such as active duty, veteran, or member of reserves. Recent amendments to the state
law include sexual orientation, which includes the actual or perceived
heterosexuality, homosexuality, bisexuality or gender related identity. Whether or not traditionally
associated with a person’s designated sex at birth. Also, order protection status, a person’s status being protected by an order protection issued
pursuant to the Illinois Domestic Violence Act 1986 or an order of protection issued
by a court of another state note that Chicago, Cook County and some
other jurisdictions have additional protected classes. For example, Chicago protects
source of income including housing choice vouchers. Cook
County also protect source of income but excludes housing choice vouchers. Unlawful actions under
Fair Housing laws. Expressing the intent to discriminate by placing ads or engaging
in real estate transactions. That can include advertising agencies
that produce the ads, publishers; such as
newspaper directories multiples listing services. It does not include internet listing services
such as Craigslist. Another unlawful action would be
misrepresenting the availability of property. This covers rental units
and property listings that are residential. Refusing to engage in a real
estate transaction. Refusing to accept or transmit
a bona fide offer or refusing to accept an
application for instance. Other unlawful actions include altering
the terms or conditions for real estate transaction, such as
charging someone higher security deposit or rent amount based on their being in a protected
class. Refusing to allow reasonable accommodations or
modifications for people with disabilities, such as denying someone the right
to build a ramp for refusing
to hold meetings at wheelchair accessible locations etc. And we’ll talk more
about disabilities. Creating a hostile environment
or unreasonably interfering with someone’s use and
enjoyment up their premises, this could include sexual
harassment of tenants having unreasonable rules and
restrictions on children. Such as not allowing them to use the
pool are restricting the hours that they can use a pool or that they can’t top play outside.
Having unreasonable occupancy standards could violate the Fair Housing Act.
This would depend on the size and layout of the
unit or other physical limitations
of the property but in general, two persons per bedroom is considered reasonable and can often be used to discriminate
against families by reducing the number of persons per
bedroom. It’s important when you’re looking at the number of people in a unit based on the number of people in a
bedroom, that you consider the total number of people that will be renting. Not how many adults and how
many children there are, but what is the total number of people.
Segregating families or other groups of people to certain floors or buildings could be unlawful and
failing to comply with the Housing for Older Persons Act. We’re going to ask and answer some specific questions
related the condos and co-ops. First, must condo associations and
cooperatives comply with fair housing laws? Yes, all members of a condo
association or co-op are responsible for complying
with fair housing laws and
can be held
liable for any violations. Fair housing laws cover
all multi-family housing regardless ownership. Do fair
housing laws supersede any bylaws, resolutions or
rules and regulations passed condo associations or co-ops? Yes, fair housing laws are legal authority
beyond the documents of a condo association or cooperative.
Therefore, all policies and rules of a condo or co-op
must be written and applied in accordance with fair
housing laws. Those who could be found liable for
violations include boards of homeowners associations, individual
property owners and management companies. If found in
violation a fair housing laws, significant penalties including fines
and monetary damages may be assessed. Does a condo association or cooperative board have the right to
choose who lives in their community? Yes, but not in a manner that violates fair
housing laws. Condo, coop and homeowners associations often reserve the right to select
or deny owners or tenets. Using criteria based on valid
business reasons such as acceptable credit history, minimum
income, references, etc. This practice is legal as long
as the criteria apply equally to all applicants. And again, this is a requirement of boards, members, property managers, anyone
who’s responsible for making selections for the condo or co-op. There are specific provisions under the fair housing
laws for individuals with disabilities. Design and construction requirements are laid out in the federal law
and there are seven principles. All covered
multiple family buildings must meet certain requirements:
that includes buildings built after March 13th 1991 consisting of four or more units that are ground level or if
all units in the building… Are in a building that has an elevator. Housing can be privately owned,
federally or publicly assisted. Including single-family
homes if they are in… Four or more to a building, apartments,
condos, dormitories, assisted living developments,
time sharing properties and homeless shelters when
used as a residence. So the requirements include, the
public common use areas must be readily accessible to and
usable by handicapped persons. All the doors designed to
allow passage into and within all premises are sufficiently
wide to allow passage by persons with disabilities in
wheelchairs. And all premises within the building units
contain the following features adaptable design: An accessible route into and through
the covered dwelling unit. Light switches, electrical
outlets, thermostats and other environmental controls
in accessible locations. Reinforcements in bathroom walls to
allow later installation up grab bars around the toilet top, shower
stall and shower seat where such facilities are provided and usable kitchens and bathrooms
such that an individual in a wheelchair can maneuver
about the space. HUD has published a fair
housing accessibility guidelines booklet intended to provide a safe harbor for
compliance with the accessibility requirements. Although these guidelines
are not the only method of complying with the Act, they’re
the most commonly known and utilized by the industry. Reasonable accommodations
are changes in rules, policies, practices, or services necessary to accommodate
persons with disabilities. Such as, designating
handicapped parking, waving a no pets rules
for support animals, providing alternate methods
for mail delivery, holding community meetings or events
in locations that are accessible and providing sign language
interpreters for meetings if there are residents who are deaf. Reasonable modifications are structural
changes so that a person with a disability can fully enjoy their home. Such as installing a ramp
for wheelchair access, installing sturdy grab bars
in the bathroom, modifying the door tension,
widening the doorways for wheelchair access or installing
a doorbell that activates a light instead of sound. Associations do not necessarily have
to pay for reasonable modifications unless the building is out of compliance
with the Fair Housing Act. Property owners and associations do need to maintain any
modifications made in the common areas. For example, if a person with a
disability pays to have a ramp installed in a common area where snow is routinely shoveled, the
association has to have the
snow shoveled off of the ramp as well. Permission to have
a reasonable modification may be contingent on restoring
the premises to its pre modification condition except
for normal wear and tear. This does not apply to modifications in common areas. The individual requiring or requesting the
reasonable modification may be asked to pay into an escrow account in order to pay for
restoring the premises to pre modification condition. Condo
associations and cooperatives must reply to requests for reasonable accommodation or
modification in a timely manner and are responsible for
maintaining modifications made in common areas. When
is a request reasonable? Well a request maybe unreasonable if it imposes an undue financial burden on the condo or co-op. If it imposes an
undue administrative burden, if it fundamentally alters the nature the operations or puts others in
the community in danger. Also remember that it is unlawful to charge a pet deposit
for service animals or require certification or
training for service and support animals or to ask people
to give details about their actual or perceived disability or
medical history. So the questions that a co-op or condo board needs to ask itself
when it receives a request: Would granting the request be too costly
and an undue burden for management? Would granting the request put others in the community
in any danger? These are balanced against the right of the person with a disability to enjoy their home in the same
manner as other residents. If an association is found to have gave
engaged in discriminatory conduct based on its reliance on the perceived
duty to abide by the terms of their governing documents, the association may be exposed to liability
for the attorneys fees of the plaintiff in addition to its own legal costs and
other penalties. A finding of a violation of the
Fair Housing Act does not require a showing of discriminatory intent.
This was established through court cases in
particular Trovato v. the City of Manchester,
New Hampshire. The site on that is 992 f supp 493 New Hampshire 1997. An innocent
attempt to enforce the covenants of an association can easily cause a board to place the
association in harm’s way. Being found violating the Fair Housing Act can be
very costly, particularly for
condominiums and co-ops. Illegally failing to provide a reasonable
accommodation or modification. For instance here are some
examples of cases where condos or co-ops have been sued and been found liable. In 2004, it cost the Glenview cue condo
association $85,000 and they were required to allow a resident using a wheelchair to enter
the building at the main entrance as opposed to a rear entrance which
they have been requiring. In 2012, a condominium association
in Puerto Rico refused to repair inoperative elevators in an
eleven-floor building, violating fair housing laws
based on disability. Cost, $1,000,000. Again discriminating because you believe you have to
abide by the terms governing documents even if they violate
the Fair Housing Act can mean liability. In 2012, a condo association was ordered to pay damages and adopt a new policy that
removes fees and insurance requirements for service animals. Cost: $20,000. In 2003, it cost a Chilean property management company in California $130,000 because they had prohibited children
from playing the common areas of a 56 unit townhouse complex. Additional cases include the Delray Beach
condo association, which in 2006 refused to allow sale of a condo to a black family.
That cost them $150,000. And the Latvian tower condo association had to comply with the consent order costing them $128,000 where they attempted to prevent sales
of a unit to a family with children. That was in 2010. Additional
questions and answers: Can condominium associations and cooperatives refuse
to rent to people they perceive to be immigrants? No, everyone should be allowed to rent
or own wherever they choose and can afford to live. Denying housing
to persons because of their actual or perceived
race or national origin is illegal under the law.
Fair housing laws cover all persons regardless of
their immigration status. Can board members or
management ban holiday or religious symbols? No, banning or requiring holiday
or religious symbols can be considered discrimination
based on religion. Religious proselytizing by board members or management can be considered
harassment. There are exemptions for certain kinds buildings. Senior
housing; to qualify as senior
housing the housing must be intended and operated for occupancy by
at least one person 55 years of age or older per unit and
must have at least 80% of the units occupied by at least
one person who is 55 years of age or older and establish and implement age verification procedures. The other
way to be classified a senior housing is to restrict all persons
in the building to age 62 or older. Religious
organizations and private clubs are exempt. Owner occupied buildings
with four units or less, the so-called Mrs. Murphy
exemption under the federal law are exempt. Individuals who own three
single-family homes or less for rental at any one time but only if the home is sold without
sold or rented without the use of any advertising or real estate agents. This is under the federal fair housing
law. It’s advisable for condominiums and co-ops to follow best practices of operating their association so that they don’t
run afoul of fair housing laws. Challenge stereotypes and learn about fair housing laws,
disability accessibility and diversity through training
for staff and board. Promote integration and
equal opportunity. Have your policies and
practices in writing and apply them consistently to
everyone who applies. Notify all owners and renters of the fair housing laws and work
to report acts of discrimination. Have clear written guidelines in place
to respond to requests for reasonable accommodations and modifications. Always maintained detailed documentation
of incidents that might result in a complaint from a disgruntled applicant, owner or renter. Be aware of discriminatory statements and/or
pictures when advertising a unit. This means that if you do intend to use human models in your advertising use diverse models as to race, family type,
disability, et cetera. Be careful about using statements that would discourage certain
categories of people from applying. For instance,
“perfect for couples” might discourage a family from applying
even if the unit were large enough for a family. Have reasonable have
an objective screening criteria available in written format
and keep records of all applications and actions taken.
Fair housing testing: Testing is an approved method all the way up to the Supreme
Court actually for enforcing fair housing laws and
it can occur in the rental real estate sales or lending
markets. Without testing housing discrimination
often goes undetected. It is used to obtain evidence of any differential treatment
based on an individual’s protected class status. An organization conducting
fair housing testing typically set up volunteers
with similar profiles and housing needs but with different
protected class statuses such as race or disability. The set of testers then would apply for the same
available housing unit to see if they’re treated differently
because of their protected class status. Testing can occur on audit basis where fair housing agencies routinely test different entities within their
service area. Or it can be complaint based where someone perceives that they
may be discriminated against and testing is one way to
determine whether or not discrimination was happening
or whether it was just an unfortunate that incident
and not based on illegal discrimination. Other evidence that can be used
as a source of discrimination in a complaint; signs or ads, written or oral statements, disparate treatment such as a different
down payment, different application fee, written
documents that reveal discrimination, testimony of witnesses who have heard improper statements that are
of a discriminatory nature and so forth. Persons who wish to file a
fair housing complaint have either a year or two years after the discriminatory conduct to file the
complaint depending on what form they use. Under the
Federal Fair Housing Act and the Illinois Human Rights Act, the complaint must be filed within one
year. State court and US federal
courts allow two years. If a complaint is filed with
an administrative agency such as HUD or Illinois Department
of Human Rights the time that the complaint
is at the administrative agency is told for purposes of filing in the US federal or state courts. That means that time is not
included in calculating the two-year filing period.
Chicago and Cook County also have fair housing laws
and accept complaints within their jurisdictions. What kind relief is available? Make whole
damages are available under both the Federal Fair Housing Act
and the Illinois Human Rights Act. The federal Act also allows
punitive damages, while the Illinois Human Rights Act
does not, but it does
include civil penalties. The federal act can also levy fines. Both can provide injunctive relief. And in the case of a complainant who prevails, the guilty party may be liable and most likely will be
liable for their attorneys’ fees and costs. The Human Rights Act allows
for civil penalties of up to $10,000 to be awarded
for a first offense. At the second offense that
goes up to $25,000 and the third offense up to $50,000. Your housing complaints can be filed both with HUD in their Chicago regional
office and with IDHR also in the Chicago office. Both of those entities will investigate
a fair housing complaint and make a decision whether or not they believes there is enough cause to
go forward with the hearing. HUD has a toll free number at 800-6690-9777 and a TTY number at 800-927-9275. Their webpage for further information is at www.hud.gov. The Illinois Department Human Rights housing inquiries can go to phone number 312-814-6229. They can be reached by e-mail at [email protected] Their toll free number is 800-662-3942 their TTY number is 866-740-3953 and their webpage for additional information is at www.illinois.gov/dhr. This is one of a number of trainings that are going to be
available at this same site and there are also a number
of fair house agencies funded by HUD that are also available
for training and other information. In preparation of this particular training directed toward
condominiums and co-ops, we would like to give special
thanks to Jeffrey L Taren of Kinoy, Taren and
Geraghty, P.C. Chicago for sharing his ideas
and training materials. Thank you.

 

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