The Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race; color; religion; sex; national origin; familial status; or disability.

In the context of Disability and Community Associations, instead of enforcing the rules and regulations equally against all residents, the FHA allows a community to “discriminate” so to speak, by making an exception to a rule to accommodate a disabled resident. It isn’t always about service animals or comfort pets; it’s about providing all residents with an equal opportunity to use and enjoy their housing.

Perhaps more than ever before, fair housing regulations are impacting community associations as to how they govern, address common area modification requests, and enforce their rules. Communities are looking for ways to accommodate their residents who, for a variety of reasons, need to modify a common area or need an exception to a community rule to have equal use of their residence. A qualified resident with a disability is allowed a reasonable exception to a rule, or permission to make a reasonable modification to common areas at her expense i.e.; a reasonable accommodation.

For some time now, the California Department of Fair Employment and Housing (DFEH) has been working on changes to the California Code of Regulations covering the Fair Employment and Housing Act. Most recently, on June 22, 2018, DFEH issued a Notice of Modifications which will likely impact how community associations address resident requests for reasonable accommodations. While the proposed modifications are being developed, it is our hope that the modifications clearly address such critical issues as 1) who pays for the modifications; 2) restoring the property after the disabled resident vacates the property; 3) what is reasonable in determining a reasonable accommodation—how much of a nuisance to the other residents is required to accommodate one resident.

In the following fair housing discrimination stories making recent headlines, we are reminded how important it is for communities to approach each fair housing reasonable accommodation request in good faith, following a reasonably diligent investigation.

Access to Elevators and Fair Housing

In April 2018, the DFEH settled a discrimination claim against Casa de Alvarado Homeowners Association brought by a resident who alleged he was unable to leave his unit due to a broken elevator.

The resident, who was wheelchair-bound, filed a DFEH complaint against the homeowners association for failing to provide a reasonable accommodation for his disability when the elevator broke down. He was unable to leave his third-floor unit for 3 months. According to the resident’s complaint, the association failed to address alternative solutions for the resident to vacate his apartment while the elevator was under repair.

This unbelievable oversight cost the association $80,000 in damages paid to the resident, and $20,000 in attorney’s fees and costs to the DFEH. In addition, the association agreed to undergo three (3) years of fair housing training on the rights and responsibilities of housing providers under Fair Housing laws.

Homeowners Association Must Provide Accessible Parking

In July 2018, a Redondo Beach homeowners association reached a settlement in a fair housing complaint brought by a resident who was denied a reasonable accommodation. For two (2) years, the resident, using a motorized wheelchair, was denied a reserved parking spot near his unit.

The resident required the use of an accessible van with a wheel chair ramp for transportation to and from the property due to a spinal cord injury. DFEH found that the association violated the Fair Housing Act by not providing the reserved accessible parking space, resulting in a $21,000 settlement payment by the association. In addition to the monetary payment, the association ultimately agreed to provide the accessible reserved parking spot for the resident, develop and implement a written, reasonable accommodation policy and, undergo fair housing training.

Addressing the association’s apparent failure to address the reasonable accommodation in good faith, DFEH director Kevin Kish stated, “when a request for an accommodation is made, housing providers, including homeowners’ associations and management companies, are required to engage in a good faith, interactive process and to provide reasonable accommodations.”

Flooring Related Discrimination Hits the Ceiling

A short island hop away, but still relevant to our shores, a Maui couple recently received a jury verdict of $1.7 million dollars against the Villas at Kenolio Condominium Association. The Villas’ rules required carpeting on second floors to prevent noise in the first-floor units. The owners, Mr. and Mrs. White, replaced their light-colored carpet with dark wood floors because Mr. White is blind in one eye and visually impaired in the other. The Whites claimed that the dark hardwood floors allowed him to see the floors and move from room to room easily. The ability to feel the floor and the sound of the steps “provided assistance” to Mr. White as he walked around the unit. Mr. White provided the board with a doctor’s letter and medical records in support of his reasonable accommodation request.

The board denied the request and issued fines against the Whites of $200 per day. An e-mail from the board president disputed Mr. White’s disability claim and stated that his needs “must not be that terrible as he walks the dogs out of the complex and around the neighborhood.” 850 days and $170,000 later, the association proceeded to foreclose on the Whites’ unit to collect accumulated fines and attorney’s fees. The association’s effort to foreclose on their home for not paying the fines resulted in the Whites suing the HOA and ultimately, recovering over a million dollars.

R|O will continue to monitor developments with the DFEH and the fair housing regulation modifications to assist our community association clients in maneuvering through this complex area of the law. If you have any questions about your community’s compliance with the FHA, please contact us at 877-446-2529.

Written by Matt D. Ober

Matt D. Ober Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner at Richardson|Ober|DeNichilo.