Is HUD Stepping Up Fair Housing Enforcement Against HOAs?

On Oct. 18, 2011, the U.S. Department of Housing and Urban Development (HUD) announced it was charging a Philadelphia condominium association with violating the Fair Housing Act for refusing to revise its "no pets" policy as a reasonable accommodation for condominium residents with disabilities who required assistance animals.

That action followed an Oct. 11, 2011, HUD complaint against a Park City, Utah, HOA, property management company, and group of condominium owners, who allegedly refused to accommodate a Gulf War veteran⁄tenant who required an emotional support dog because of a disability.

Has the HUD quietly placed HOAs in its sights? "We're just in the business of enforcing the Fair Housing Act and making sure people know it's illegal to be discriminated against if they're disabled and ask for a reasonable accommodation," says Shantee Goodloe, HUD public affairs specialist.

Here, we discuss HUD's recent cases and the lessons for HOAs. 

Disability Discrimination: Number One Complaint

If it seems as though HUD's pursuing HOAs, that may because Americans continue to file a large number of discrimination complaints. "Housing discrimination based on disabilities has been the number one complaint for the last four years, ahead of race," says Goodloe, who notes that the Fair Housing Act protects people from discrimination on the basis of race, color, disability, national origin, religion, sex, and familial status. "It could be against a condo association for refusing to give someone a parking space or for refusing to allow someone with a disability an emotional support pet. Complaints run the gamut." 

More than 10,000 fair housing discrimination complaints were filed in fiscal year 2010, according to HUD' s Annual State of Fair Housing Report, issued in August 2011. Of the 10,155 complaints, 48 percent alleged disability discrimination, 34 percent alleged discrimination based on race, and 15 percent alleged discrimination based on family status. Those numbers were consistent with the number and type of complaints received during the previous three years, the report says. 

Why are there so many disability–based complaints? "We have an aging population, and more people are educated to know it's against the law for a housing provider not to give the disabled a reasonable accommodation," says Goodloe. "We've done outreach, and people know if they don't get the reasonable accommodation they request, it's against the law." 

James R. McCormick Jr., a partner at Peters & Freedman LLP in Encinitas, Calif., who represents associations, says the growth in complaints to HUD may also be because it's easier—and costs nothing—to file a complaint with HUD than to pay a lawyer to press a claim. "Owners are looking at HUD as a way to enforce their rights without hiring an attorney; HUD will enforce the laws for them," he says. "Just four to five years ago, it was a little more in the association's favor, where the association could ask, 'What's the nexus between what you're requesting and the disability?'" he explains. "Now, if an owner can show a disability, the association is going to be hard pressed not to give an accommodation." 

HUD's Recent Cases

The two October cases filed by HUD against HOAs involved a request for assistance animals. In both, HUD alleges the HOAs made the requests overly burdensome on HOA residents. 

In the October 11 case, HUD claimed that a Gulf War veteran who asked for an emotional support dog was improperly charged fees and fines to get approval. HUD contends that Fox Point at Redstone HOA in Park City, Utah, required the veteran, who was living as a tenant in the association, to pay a registration fee, provide proof of liability coverage, and sign a release allowing the HOA to obtain his confidential medical records. He provided medical documentation of his need for the assistance animal and secured liability insurance. However, he refused to consent to the HOA's request for access to his private medical information, and he refused to pay the $150 fee. 

HUD says that even after Fox Point conceded the dog was medically necessary, it continued to demand the veteran pay the fee. It also levied a number of fines against the condo owners who were the vet's landlords because of the presence of the support dog. The condo owners, in turn, refused to renew their tenant's lease until he paid the fee and the fines, causing the vet and his wife to move rather than pay. 

HUD notes that the Fair Housing Act prohibits HOAs from charging such fees and fines. It also bans HOAs from requiring the disabled to obtain liability insurance and provide their medical records. 

Err on the Side of Caution

What's the lesson? You need to know fair housing law before your board responds to a request for an accommodation. HUD has posted guidelines and issued a joint statement with the U.S. Department of Justice that taken together serve as a primer on fair housing rules. When you're faced with a request for accommodation, err on the side of being accommodating rather than rigidly interpreting your governing documents. 

"I've seen where associations haven't approved reasonable ingress and egress to a home for a prospective purchaser or a current tenant, and I know it's an issue," says Bill Worrall, vice president of The Continental Group, which is based in Hollywood, Fla., and manages 1,300 condominium and homeowner associations totaling 310,000 residential units. "The outcome is that the HOA has been sanctioned and⁄or fined. I don't know why an HOA would not approve modifications to a home that are required under any federal law. If I'm managing a community in that scenario, we'd make sure we understood the federal law in conjunction with the association's governing documents." 

McCormick agrees. "I think it's something associations should be careful of," he says. "If they can give an accommodation, it would behoove them to do so." 

Courtesy: HOALeader.com
http://www.hoaleader.com/public/657.cfm

This article is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.

HOA 'Steals' Homeowner's Virgin Mary Statue

"Thou shalt not steal" is a shared societal principle that, by law, protects our private property, religious or otherwise, from being taken by others at will. That is, at least, until your private property becomes offensive to your local homeowners' association.

An enraged family in Pittsburgh is accusing their homeowners' association of "stealing" the beloved Virgin Mary statue that they had displayed in front of their Robinson Township condominium.

The homeowners' association has admitted to the "theft," conceding that they did indeed have the 150-pound cement statue removed from the Vasko family's home -- but only because it was placed on "common ground" where homeowners are legally banned from displaying anything.

To add insult to injury, the Vasko family have been slapped a hefty fine for every month that they violated the policy, and have racked up a bill of over $4,000. Until the fine is paid, the homeowners' association has announced, it will hold the Virgin Mary statue in custody and have suspended the Vasko family's rights to park on their own property.

"Would that be extortion or kidnapping?" An irate Steven Vasko told television station KDKA 2. "You tell me, I don't know."

This is not the first time this year that local homeowners' associations have drawn fire for questionably strict enforcement of covenant rules. In June, a 77-year-old Army veteran in Macedonia, Ohio, was threatened with legal action for having an American flag flying in his front yard -- in potential violation of the "Freedom to Display the American Flag Act" of 2005.

Similarly, in July, a couple in Bossier City, La., were sued by their homeowners' association for refusing to remove a front yard banner supporting their son, who was serving as a Marine in Afghanistan at the time. According to the couple's lawyers, this viciously "attacked" the homeowners' First Amendment rights to freedom of expression.

Similar defenses could be used in this case, where sensitive issues such as religious expression are forced into the limelight. Because the object in question is an "article of faith," it is argued by the American Civil Liberties Union that the right of "families to erect [religious] monuments on their own property is constitutionally protected, regardless of whether it is public or private and regardless of whether someone is offended or not."

And it looks like Vasko plans to leverage that argument until he gets his statue back.

"This is religious persecution. This is discrimination," Vasko says. "Is it a losing battle to hold your ground? No. If you are [losing], then we might as well all quit as Americans."

Courtesy: Krisanne Alcantara.
http://realestate.aol.com/blog/2011/12/13/hoa-steals-homeowners-virgin-mary-statue/

This article is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.   

Mezuzah Case: Condo Association Bylaw vs. Jewish Practice

The case of a Connecticut woman who's being fined for affixing a mezuzah to her condo's doorframe pits the First Amendment's guarantee of religious freedom against a condo association's bylaws -- and so far, the condo association isn't backing down.

Neither is Barbara Cadranel: Though the California Condo Association in Stratford, Conn., is threatening to impose a $50-a-day fine until the tiny religious scroll in its small, decorative box is removed, the 60-year-old tenant is fighting to be able to practice a required Jewish rite.

In her opinion, she's being discriminated against, and she may be right. Her neighbors have been freely allowed to hang Easter wreathes and crucifixes on their doors. The difference, though, is that the California Condo Association allows for door adornments, but claims its rules prohibit hanging anything on the doorframe, where Jewish law explicitly requires a mezuzah be hung.

That's a very pointed attack on religious rights, says Cadranel's lawyer, Alyza Lewin of Lewin & Lewin LLP in Washington, D.C.

"They allow everything -- they don't have a problem as long as it's not on the doorframe," Lewin said. "They make a distinction between the door and the doorpost, and the one item with any regularity that you'll see on the doorpost is a mezuzah. That's a rule that is targeting mezuzahs without saying it explicitly."

Bending A Definition

Beyond that, Lewin alleges, even the condo association's claim that the bylaw in question applies to doorframes is a stretch.

"It prohibits her from putting anything on the exterior walls, but in the text, the exterior walls clearly refer to the outside of the building -- the awnings, for example -- and have nothing to do with interior walls," Lewin said. "They're squeezing in the doorpost as an exterior wall. It seems as if they're trying to force this definition in order to come up with some justification."

Though there's nothing cited specifically about the inside hallways -- where the units' doors are -- the condo association has been pushing that interpretation to make its case. Yet the bylaws, which enumerate what belongs to each individual owner, explicitly identify windows, window screens and screen doors as part of the condominium unit. Given that, it's baffling that the doorframe wouldn't be included, according to Lewin.

"The idea that the screen door -- but not the door frame -- is a part of the unit, that would probably come as a surprise to the people at Home Depot people selling you a door," she said.

Exclusion Beyond Aesthetics

Given that the small glass mezuzah (secured in place by Velcro) is neither a safety hazard nor an eyesore, Lewin says, she can only interpret this to be a case of discrimination. That would put the California Condo Association in violation of the Federal Fair Housing Act.

"You're saying that the only people who can live here cannot put up a mezuzah," Lewin said. "The condominium is saying that observant Jews aren't welcome to live here."

The Anti-Defamation League has also rallied behind Cadranel to protect her rights.

"Requiring it to be taken down is tantamount to requiring a Jewish person to move," said Randi Pincus, assistant director of the Connecticut regional office of the ADL. "In effect, it's to exclude people of a certain background from living there."

Pincus said that mezuzah cases crop up every few years. And legal precedents have been set indicating that Cadranel is likely to win her case if it goes to court. In 2009, the U.S. Seventh Circuit Court of Appeals ruled in Bloch v. Frischholz that a condo rule prohibiting an owner from affixing a mezuzah violated various federal prohibitions against religious discrimination in housing.

There's another type of religious housing case that has cropped up in the courts and in the news in recent years. Some groups have fought against the rights of Orthodox Jews to put up an eruv -- a ritual enclosure line that surrounds a community. Usually created by running thin, virtually invisible fishing wire from the tops of utility poles and streetlamps, an eruv makes it legal (under Jewish law) for a religiously observant person to perform certain activities outside during the Sabbath that would otherwise be forbidden: carrying a cane, for example, or pushing a stroller.

And as with the mezuzah, whatever antagonism arises over an eruv seems aimed less at its actual, physical presence -- which can go almost undetected -- and more at the people who need it.

"Unless you know that the eruv is there, the casual observer won't notice it," Lewin said. "It's not as if the opposition to it is not an aesthetic one. There's some concern that if there's an eruv in the area, there's a thought that the Orthodox Jews who require this will move in and the community will be overrun by a certain type of person."

Said Pincus: "Any case where there's an issue of trying to take regulations and adjust them as necessary to accommodate religious practice, every effort should be made. Especially in the case of the mezuzah: It's not harming anyone, and it's very unobtrusive."

Staying Strong

If the condominium association does not agree to allow the mezuzah, Lewin said that she will file complaint on behalf of Cadranel with the Connecticut Commission on Human Rights and Opportunities.

Cadranel is weathering the storm.

"By allowing those displays but prohibiting my small mezuzah, they have made me -- as a Jew -- feel very unwelcome," Cadranel told AOL Real Estate. "I have felt bullied and intimidated. I think the distinction they are making between the door and the doorpost is bogus."

"It's made her feel rather unwelcome," said Lewin, "but at the moment she has no plans of leaving, and no plans of taking down the mezuzah."

Update: On April 3, Nathan Lewin and Alyza D. Lewin announced that their client Barbara Cadranel, had successfully resolved the issue in her favor--just in time for the Easter and Passover season. The California Condominium Association has agreed to allow Cadranel to hang her mezuzah and has completely removed any penalties and fees against her. The condominium association has also announced that it will allow any future residents to place a mezuzah or any other religious symbol on door frames without necessary approval.

Courtesy: Ross Kenneth Urken.
http://realestate.aol.com/blog/2012/03/29/mezuzah-case-condo-association-bylaw-vs-jewish-practice?icid=maing-grid7|main5|dl3|sec1_lnk3%26pLid%3D147690

This article is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.   

HUD Proposes Rule to Prohibit Housing Discrimination Based on Sexual Orientation or Gender Identity

24 CFR Parts 5, 200, 203, et al., Equal Access to Housing in HUD Programs—Regardless of Sexual Orientation or Gender Identity; Proposed Rule.

Associations, community leaders and managers are often the target of housing discrimination claims.  It is against Colorado law to discriminate against anyone with respect to sale, rental or terms and conditions of housing based upon race, color, national origin, sex, handicap, familial status, sexual orientation, gender identity, or religion.

New HUD rules would expand the categories of persons entitled to protection on a federal and sometimes state level, depending on the program.  HUD seeks to clarify that housing cannot be denied based on marital status, sexual orientation, or gender identity and, further, specify that all eligible families will have the opportunity to participate in HUD programs.

http://portal.hud.gov/hudportal/documents/huddoc?id=LGBTPR.PDF

This blog is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.