Community Associations Update - April 2014
Understanding and Contrasting the ADA and FHA
By: Marla Diaz, Esq.
Originally published in Quorum Magazine, November 2013.
No one who becomes a board member for their community association does so with the idea that they want to discriminate against their neighbors. Yet, more and more boards are facing discrimination accusations under the Fair Housing Act and Americans with Disabilities Act. It is critical, therefore, for board members - and the managers and lawyers who assist them – to understand the civil rights laws that apply to them and how these laws can affect the day to day operation of the community association.
The federal government adopted two civil rights acts that can affect community associations. The first is the Fair Housing Act (“FHA”), which was adopted in 1968 and which prohibits discrimination in the operation, leasing or sale of multi-unit housing, including community associations. The second is the Americans With Disabilities Act (“ADA”), which Congress enacted in 1990 and which prohibits discrimination against the disabled in places of public accommodation.
What is the FHA? What is the ADA?
Initially, it is important to understand that the FHA and ADA are civil rights acts, enacted to provide certain protected classes with equal access to use housing and places of public accommodation. Because of the strong public policy concerns underlying the adoption of both Acts, both should be and are liberally interpreted to provide protection for the classes of individuals they cover.
The purpose of the FHA is to provide certain classes of people with equal access to housing and to the facilities and services associated with housing. The protected classes include race, color, religion, sex, national origin, familial status and disability. Many of the provisions of the FHA regarding renting, selling and advertising housing do not typically apply to community associations. Discrimination claims against community associations under the FHA are most often made under the following provisions:
- 42 U.S.C. § 3604(f)(3)(A) – which requires a community association to allow reasonable modifications to common elements, common area, units and/or lots to accommodate a disabled person;
- 42 U.S.C. § 3604(f)(3)(B) – which requires a community association to make a reasonable accommodation in its rules, policies, practices, or services to allow a disabled person equal opportunity to use and enjoy their home; and
- 42 U.S.C. § 3604(f)(2) – which prohibits a community association from discriminating against any of the protected classes in the provision of services or the use of its facilities.
Because of these FHA requirements, a community association must be careful that the rules and regulations it adopts apply equally to all residents and that it cautiously analyzes requests for reasonable modifications and reasonable accommodation so as to avoid any claim of discrimination.
The ADA has less potential to impact the operation of a community association because it prohibits discrimination against disabled individuals in the use and enjoyment of places of public accommodation. 42 U.S.C. §12182(a.) Places of public accommodation are required to maintain certain accessibility features to allow disabled persons an equal opportunity to access and use the public accommodation.
Private community associations who facilities are only open to owners and residents do not qualify as places of public accommodation and are not subject to the ADA’s requirements. The exception to this rule is if a community association opens up its facilities to the public, such as when a community association’s pool is used for a swim meet with a team from another community. If a community association does engage in activities that make it a place of public accommodation, then it is subject to the requirements of the ADA for that portion of the property and may be required to install accessibility features.
What are the primary differences between the FHA and ADA?
The FHA and ADA are both intended to prevent discrimination, but there exist significant differences between the two that impact how they affect community associations.
- Private v. Public – The FHA governs private communities and, therefore, affects the operation of all community associations. The ADA applies only to places of public accommodation and, thus, unless a community association takes specific action to open itself to the public, the ADA does not apply to community associations.
- Disability v. Broader Protected Class – The ADA only prohibits discrimination for disabled individuals, while the FHA prohibits discrimination based on race, color, religion, sex, national origin, familial status and disability.
- Design & Construction Requirements – The ADA creates an ongoing obligation to have certain accessibility features and to update their property whenever “readily achievable” to meet changing accessibility requirements. Practically, this means that a community association that has opened a portion of its property as a place of public accommodation must upgrade their property, as necessary, to provide the requisite accessibility features in that portion of its property. The accessibility features are identified in the ADA Accessibility Guidelines (ADAAG). The FHA requires that housing designed and constructed for first occupancy after March 13, 1991 have certain accessibility features, but unlike the ADA, does not require that the property be retrofitted with accessibility features if designed and constructed prior to March 13, 1991.
- Enforcement – The Department of Justice is involved in the enforcement of both the ADA and the FHA. Also, both the ADA and the FHA create a private cause of action that allows individuals to file suit directly against a community association for discrimination under either Act. Additionally, however, the FHA is subject to enforcement by city and county human rights commissions, state and local fair housing boards, and the Department of Housing and Urban Development (“HUD”). States and localities often adopt their own fair housing regulations, which are similar to the FHA but carry their own independent penalties and enforcement procedures. A community association must, therefore, be aware of the local, state, and federal laws so as to insure compliance with all.
- Reactive v. Proactive – The ADA is a proactive statute that requires those community associations with facilities qualifying as public accommodations to add the required accessibility features so long as they are “readily achievable.” A community association does not need to receive a request from a disabled person before it has an obligation to add the accessibility features to its areas of public accommodation. While the FHA requires community associations to allow equal access by all the protected classes to its facilities and services, it is otherwise a reactive versus proactive statute. The FHA, therefore, does not require an community association to take action unless it receives a modification or accommodation request from a resident or owner.
Common Issues for Community Associations Affected by the FHA and ADA
While significant differences exist in the application of the FHA and ADA to community associations and while the ADA has limited application to community associations, community associations face certain issues that are impacted by both the FHA and ADA.
Community associations’ swimming pools give rise to a number of issues under both the ADA and FHA. Under the FHA, a community association is prohibited from discriminating against any individuals in the protected classes in the facilities and services that it provides. An association cannot, therefore, adopt any rules or regulations regarding the use of the facilities or services that disparately impact one of the protected classes. For example, a rule that prohibits children from swimming in the pool for fifteen minutes of each hour constitutes discrimination against familial status and violates the FHA.
The ADA also creates issues for community association swimming pools to the extent that the pool is a place of public accommodation, such as when the pool is used for swim meets that invite teams from outside the community. If the pool is a place of public accommodation, the community association will be obligated to install accessibility features, which would include adding a lift and/or sloped entrance to the pool to allow disabled individuals to equally access the pool.
Both the ADA and FHA impact, albeit differently, the access of animals to community associations. The FHA provides that, if requested as an accommodation for a disability, a community association must modify its rules to allow residents to keep animals. This can include trained service animals and emotional support animals that are not required to have special training. A wide variety of animals have qualified for a reasonable accommodation exception under the FHA, including dogs, cats, rabbits, and miniature horses. Potentially any animal that provides well-being, comfort or companionship necessary for a disabled person to have equal use of their housing could qualify for a reasonable accommodation under the ADA.
The ADA is far more limiting in the access it allows animals to have to public accommodations. The ADA only requires that a public accommodation modify its policies, practices or procedures to allow the use of a service animal by a disabled person. The definition of “service animal” includes only dogs that have been specially trained to provide services to a disabled person. Emotional support animals do not, therefore, qualify for access to a place of public accommodation under the ADA. The ADA recently amended their guidelines to also allow miniature horses in places of public accommodation, provided they are house broken, under the owner’s control, of a type, size and weight that can be accommodated in the facility, and do not compromise the safe operation of the facility. A community association operating a pool as a place of public accommodation may, therefore, be required to allow both service dogs and service miniature horses in the pool facility.
Both the ADA and the FHA use the word “discrimination” to describe the conduct they prohibit. No one, be they board member, manager or counsel, wants to be faced with such an accusation or mired in an investigation under either Act. It is important, therefore, to be mindful of the application of each Act to the operation of a community association and to seek counsel whenever necessary and as early as possible to make certain that the association carefully considers its options and obligations under both the ADA and FHA. Doing so will avoid misunderstanding and, in some cases, expensive litigation.
Suspension of Community Privileges
A community association's ability to suspend an owner's voting privileges and community privileges, such as parking, pool, and/or fitness center access, is a powerful tool associations can use in getting the attention of owners who are in violation of association governing documents. This tool is typically used when an owner is delinquent in paying his or her assessments and can serve as a deterrent for non-payment as well as an effective means of assessment collection. It is important to note, however, that before an association can proceed with suspending an owner's voting and/or community privileges, it must carefully review its Declaration, Bylaws, and applicable statutory codes in order to determine whether it has the requisite authority to suspend such privileges, and if so, what procedures must be followed. The following articles address the rules of Virginia, D.C., Maryland, and Delaware.
By: Roberto Montesinos
In Maryland, similar to Virginia, the issue of whether an association has the authority to suspend an owner’s privileges is controlled largely by the association’s governing documents and state statues regulating community associations. In the case of both condominium and homeowners associations, boards should carefully review their Declaration and Bylaws prior to suspending an owner’s privileges. If the governing documents contain language that expressly outlines an association’s authority to suspend privileges, then an association has a strong legal foundation for taking such action in the event the governing documents are violated (subject to the due process considerations discussed below). It is always preferable from a legal standpoint to have a specified sanctioning authority in the Declaration or Bylaws. However, many Maryland community associations do not contain specific language of this nature. Fortunately, even if the governing documents are silent or vague with respect to this issue, an association can generally still adopt rules and regulations that specify the privileges which may be suspended in the event of a violation of the governing documents.
Proper due process procedures should be incorporated into any adopted rules governing the suspension of privileges. Maryland condominium associations need to cautiously follow the requirements of Section 11-113 of the Maryland Condominium Act prior to imposing any sanction (including fines and the suspension of privileges) for violations of the governing documents. This Section of the Act requires that a series of notices be sent and a hearing be held prior to the imposition of any sanction. If procedures regarding enforcement do not already exist in the Bylaws, condominium associations should carefully craft due process procedures that comply with the requirements of the Act. Rules regarding suspension of privileges can be integrated into the enforcement procedures. Notably, the Maryland Condominium Act places the burden on the association to notify an owner of a violation and hold a hearing prior to imposing any sanction. We point this out because the Maryland Homeowners Association Act does not contain a similar requirement.
The issue of suspension of privileges in the framework of a Maryland homeowners association is entirely controlled by an association’s Declaration and Bylaws. Many associations already have enforcement procedures outlined in their Declaration. However, for those that do not, we do recommend that a due process policy be adopted in the interests of ensuring proper notification of infractions and enforcement. Once again, just as in condominium associations, rules regarding suspension of privileges can be incorporated into adopted enforcement procedures. Our recommendations stem from our experience that courts generally like to see that a homeowner has been given notice and an opportunity to be heard on any alleged violation. The process of sanctioning an owner through a loss of privileges can be abbreviated in homeowners associations because the Homeowners Association Act does not impose the same burden as the Condominium Act. Therefore, homeowner associations can structure their due process procedures differently than condominiums. As an example, an association could place the burden on a homeowner to request a hearing after a violation has been found.
In the context of assessment collection, both condominium and homeowners associations can incorporate provisions regarding the suspension of privileges into their existing collection policy. If an owner becomes delinquent, an association can suspend privileges as outlined in the due process procedures set forth in the collection policy.
One final point to mention is that any of the above referenced policies and procedures should be adopted in accordance with state statues and/or an association’s governing documents. In the case of a condominium association, policies should be adopted in accordance with Section 11-111 of the Maryland Condominium Act. In essence, this Section provides that notice of proposed rules must be circulated to the membership for review and comment prior to adoption by the board. By following this adoption process, the board can ensure that the community is properly informed and aware of the policy. Even though the Maryland Homeowners Association Act does not contain a similar rule adoption provision, we recommend that homeowners association follow a similar process in the interest of certifying proper notification.
District of Columbia
By: Roberto Montesinos
Community associations in the District of Columbia have similar options available to them with respect to suspending an owner’s privileges as those in Maryland. Ideally, an association’s governing documents will contain specific provisions authorizing the board of directors to suspend certain privileges if the governing documents are violated. In the hierarchy of community documents, it is always preferable to have the Declaration and/or Bylaws speak on this issue. However, if language of this nature is not present, both condominium and homeowners associations in the District can adopt rules and regulations authorizing the suspension of certain privileges.
The District of Columbia Condominium Act does not contain the same level of due process requirements as either the Maryland or Virginia Condominium Acts. However, condominium associations should be mindful that Section 42-1903.08(11) of the Act does provide that an association has the power to levy a reasonable fine for violation of the governing documents only after notice and an opportunity to be heard. While this provision does not speak directly on the issue of suspension of privileges, it does seem that the intent of the Act is to impose some form of due process on condominium associations prior to the imposition of a sanction. For that reason, we find it advisable for condominium and homeowners associations in the District to adopt and maintain enforcement policies that specifically set forth the potential for suspension of an owner’s privileges in the event of a violation of the governing documents.
Collections policies may also be amended to include provisions regarding the suspension of privileges in the case of a unit owner delinquency. Any policies that are adopted by a board should be regularly disseminated to the membership so that owners are aware of the potential sanctions they face in the event of a violation and/or delinquency.
An interesting point to note is that the District of Columbia Condominium Act will be officially amended within the coming months. As part of the amendments, the Act incorporated a new section defining a “unit owner in good standing.” This section provides that
Unless otherwise defined in the condominium instruments, unit owner in good standing shall mean a unit owner who is not delinquent for more than 30 days in the payment of any amount owed to the unit owners’ association, or a unit owner who has not been found by the unit owners’ association or its executive board to be in violation of the condominium instruments or the rules of the unit owners’ association.
This Section serves as a default provision in the event the governing documents of an association do not have a definition for what an owner ‘in good standing’ is. For the purposes of our discussion regarding suspension of privileges, associations should take care to classify an owner as an ‘owner not in good standing’ prior to taking any enforcement action, including the suspension of privileges, in the future.
By: Chad Toms
Under 25 Del. C. ¶ 81-302(a)(11), which is applicable to many but not all* common interest communities in Delaware, an Association may
…suspend any privileges of unit owners, other than the right of a unit owner to vote on any matter submitted to a vote of unit owners, or services provided to unit owners by the association (other than those necessary for the habitability of the owner's unit) for non-payment of assessments; may impose charges for late payment of assessments; and, after notice and an opportunity to be heard, may levy reasonable fines for violations of the declaration, bylaws and rules of the association.
This statutory provision is relatively new in Delaware and has not been challenged or interpreted by a Delaware Court yet. However, it provides an Association with broad powers to suspend privileges for unpaid assessments so long as the suspended privilege is not related to a unit owner vote or a service necessary for the habitability of a unit. A board that is considering the suspension of certain owners’ privileges should carefully review their governing documents to determine if there are any express provisions allowing or limiting the proposed suspension.
*The application of this section of the code requires an in-depth analysis, so if you have questions please contact your attorney.
By: Kathleen Waldy
In Virginia, before suspending an owner’s privileges, the board of a property owners’ association must review its Declaration and Bylaws and a condominium association must review its condominium instruments (collectively, “Governing Documents”) to determine whether it has the authority to suspend privileges, and if so, which ones. This section will discuss the current requirements of the Virginia Property Owners’ Association Act (§ 55-513) and the Virginia Condominium Act (§ 55-79.80:2) and the case law interpreting those statutes, as well as the impact of a new requirement imposed by House Bill No. 791, which has been passed by both Houses and is pending before the Governor.
Even in the absence of express authority to suspend privileges in the Governing Documents, associations previously interpreted the Virginia Property Owners’ Association Act and Condominium Acts to mean that an association could suspend privileges if it had that authority under its rules and regulations. Specifically, the current versions of Section 55-513(B) of the Virginia Property Owners’ Association Act and Section 55.79:80:2(A) of the Virginia Condominium Act provide, in relevant part, that the association
shall also have the power, to the extent the declaration (or condominium instruments) or rules and regulations duly adopted pursuant thereto expressly so provide, to (i) suspend a member's right to use facilities or services, including utility services, provided directly through the association for nonpayment of assessments which are more than 60 days past due, to the extent that access to the lot (or unit) through the common areas (or common elements) is not precluded and provided that such suspension shall not endanger the health, safety, or property of any owner, tenant, or occupant. (emphasis added)
However, two cases tend to suggest that an association is