Fair Housing
United States federal fair housing statutes are serious business.
The Fair Housing Act (FHA), overseen by the Department of Housing and Urban Development (HUD), has been around since 1968, but has grown in notoriety throughout the years especially as it relates to litigation in common interest communities (CICs). HUD has an entire webpage with examples of housing discrimination and a page dedicated to reasonable accommodation and modifications.
The Fair Housing Act covers most housing. In very limited circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family houses sold or rented by the owner without the use of an agent, and housing operated by religious organizations and private clubs that limit occupancy to members.
The most recent fair housing update especially relevant to community associations is FHEO Notice 2020-01: Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act (view more on our Emotional Support Animals & Pets page).
Protected Classes Covered by the FHA
Race, Color, Religion, Sex, National origin, Handicap, Familial status, Harassment*
49 States have their own fair housing / housing discrimination statutes. Some of those statues include additional protected classes, definitions and nuances from the FHA. As an example, Colorado's Fair Housing Act includes marital status.
*HUD published final rule 24 CFR 100 on September 14, 2016 addressing harassment. <Click to expand👇 ⏬ >
Harassment is focused on FHA protected classes (above). View accommodation case law references. Read You Can't Simply Look the Other Way.
SUMMARY
Your association can be sued if a board member, agent, employee, or other owner creates a hostile environment that harasses a resident member of a protected class.
There's no need to put your association on notice as harrassment can fall in the "you should have known" category.
Despite CAI's 20-page dissent, HUD defined harrassment (§ 100.600):
"Quid pro quo" harassment refers to 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.
"Hostile environment" harassment refers to 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.
and established that CICs can be found liable (§ 100.7):
HUD has slightly revised § 100.7(a)(1)(iii) to clarify that a housing provider is liable under the Fair Housing Act for third-party conduct if the provider knew or should have known of the discriminatory conduct, has the power to correct it, and failed to do so. HUD also notes that the rule does not add any new forms of liability under the Act or create obligations that do not otherwise exist. The rule does not impose vicarious liability (see § 100.7(b)) on a community association for the actions of persons who are not its agents. Section 100.7(a)(1)(ii) describes a community association's liability for its own negligent supervision of its agents, and § 100.7(a)(1)(iii) describes a community association's liability for its own negligence for failing to take prompt action to correct and end a discriminatory housing practice by a third-party. With respect to § 100.7(a)(1)(iii), the rule requires that when a community association has the power to act to correct a discriminatory housing practice by a third party of which it knows or should have known, the community association must do so.
As the commenter recognizes, a community association generally has the power to respond to third-party harassment by imposing conditions authorized by the association's CC&Rs or by other legal authority.[31]
Community associations regularly require residents to comply with CC&Rs and community rules through such mechanisms as notices of violations, threats of fines, and fines. HUD understands that community associations may not always have the ability to deny a unit owner access to his or her dwelling; the rule merely requires the community association to take whatever actions it legally can take to end the harassing conduct.
