The federal Fair Housing Act (FHA) of 1968 prohibits the discrimination of individuals based upon their race, color, religion, sex, handicap, familial status, or national origin, and said laws have been found to be applicable to homeowners associations. Thus, it is imperative that homeowners association officers, directors, and management personnel be aware of how the FHA can impact their homeowners association. In 2016, the Department of Housing and Urban Development (HUD) completed formal rules in order to create standards for assessing HOA harassment claims under the FHA and facilitate consistency by courts in rulings that are made in harassment claim cases that are brought under the FHA.
One such new rule that is codified in Title 24 of the Code of Federal Regulations at section 100.7, subparagraph (a)(1)(iii), a copy of which is linked below, states that a person (which could be the association and/or its individual board members, officers or managers), is directly liable for Failing to take prompt action to correct and end a discriminatory housing practice by a third-party (i.e. an association employee, member, or a tenant of an association member), where the person knew or should have known of the discriminatory conduct and had the power to correct it.
To establish liability under the above section, the discrimination in question must have been against a member of one of the classes of people that are protected by the FHA and: (i) the person knew or should have known about the alleged harassment; (ii) the person failed to take prompt action to correct the injustice; and (iii) the person has the power to correct the alleged behavior.
Knowledge of the Alleged Harassment.
The first element to establish liability is to show that the person knew, or should have known based on facts he or she was aware of, is that a person has been the victim of discrimination based on their race, color, religion, sex, handicap, familial status, or national origin. If the harassment is not based on a protected class, it may still qualify as harassment, but it will not trigger the requirements under the FHA for the association to intervene. To determine if harassment is taking place, HOA directors should evaluate the nature of the conduct being alleged, the context in which the alleged incidents occurred, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the people involved. It does not require proof that the alleged victim suffered psychological or physical harm, only that the alleged harassment occurred.
Prompt Action to Correct the Injustice.
If, after investigating HOA harassment claims, the associations directors determine that harassment is occurring, a demand should be made on the harassing party that he/she cease the harassment. If the harassment continues after the demand, the directors should hold hearings at which the person that is alleged to have committed the harassment has an opportunity to be heard. If a determination has been made that there has been harassment that violates the FHA, appropriate corrective action should be taken to end such harassment. The corrective action could be a cease and desist letter, levying fines and/or suspension of privileges as provided for in the associations governing documents.If those corrective actions are not sufficient to end the harassment, it may be necessary for the association to file a legal action in which a restraining order is sought.
If an associations board of directors fails to investigate and take appropriate action when it has knowledge of, or should have known, of the harassment, the victim of the HOA harassment claims can file a complaint with the U.S. Department of Housing and Urban Development (HUD).HUD would then refer the matter to the appropriate state authority for investigation and possibly action against the association.
Power to Correct the Alleged Behavior.
Because HOA boards are empowered to take action against persons who violate the governing documents, they are said to have the requisite power to take action to remedy a harassment claim.
Based on the regulations established in 2016, homeowners associations are at greater risk of being subjected to liability for failing to take action to curb harassing conduct against people who are protected against discrimination by the FHA. Association boards should no longer have a blanket policy of not becoming involved in situations pertaining to neighbor-to-neighbor disputes when one of them files a complaint with the association alleging harassment. When claims of harassment are made, the board of directors must investigate and take appropriate action if it appears that a protected person has been harassed in violation of the FHA. Furthermore, association directors should adopt policies and procedures for handling harassment claims within their association. Such policies and procedures should cover such things as the reporting and investigation of alleged harassment, as well as the policies and procedures for hearings, adopting findings, and taking appropriate action to remedy the harassing conduct.
See Attachment: Code of Federal Regulations Title 24 100.7