Help Your Clients Avoid Stumbling into Fair Housing Problems, Part 1

Want to help your clients avoid some dangerous territory in terms of both money and reputation? Here’s one easy way — educate them about some of the ostensibly innocent practices they engage in that could land them in court for fair housing violations.

Our experts have identified several that might come back to haunt a community association, and we’re laying them out in the first part of a two-part article.

Lack of sensitivity or inclusion

At one end of the spectrum, says association attorney Michael Kim, of counsel with Schoenberg Finkel Newman & Rosenberg, LLC, in Chicago, are practices that most associations probably give little thought to.

“These are things that, in their most innocent treatment, would be considered quaint but could be offensive to current sensibilities,” he says. “They may not be a per se violation of any statute, but they may indicate a certain mentality or culture that makes it a little more challenging to say you’re up to date on what you should be doing.”

For example, Kim reports visiting a condo development in Florida with rooms that were still labeled Men’s Club Room and Women’s Club Room. “That would seem to be a bit dated, to say the least.”

He points to cultural shifts as a reason for associations and managers to scrutinize practices that may not have raised an eyebrow in the past.

“We’re in a different climate with a heightened sensitivity, and certain practices should be re-examined. You don’t need to become the thought police or PC police, but go back and see if there are situations where there could be an unintended offense or deterrent to living in the community.

“It might just require tweaking, and it helps you defend against claims that you have a culture that isn’t friendly to certain groups.”

Offensive behavior at meetings

While most of the circumstances described above are minor and not necessarily risky on their own, Kim says, the next level involves less forgivable situations: “In the last 10 to 15 years or so, I’ve seen language used in the context of an association event that would be considered inappropriate.”

He cites a building meeting where an owner stood up to complain about a situation and said “those [racial pejorative] people shouldn’t be allowed to do that.” That statement was bad enough. “What was more troubling,” Kim says, “was that no one said anything about it.”

And it’s not just owners who can get an association in dicey territory in this way but also third parties such as vendors. Kim attended an association meeting where a contractor explained the increase in cost on a facade project by saying “the problem is that we can’t get Black people to do this kind of work because they don’t like to work hard so we have to hire Hispanics, and it’s a higher cost.”

Kim says boards need to intervene in such situations. “You don’t have to get into a screaming situation, but, if you don’t intervene, it could be argued that the board is tolerant of that kind of conduct, behavior, or language.

“I’ve had clients accused of discrimination, and I’m confident they’re not bigoted, but when you have these things out there and somebody makes a claim, agencies seem to be looking for anything that could reinforce the claimant’s argument.”

Poor handling of reasonable accommodation requests

Other missteps more clearly violate the fair housing laws, including the flawed processing of residents’ requests for reasonable accommodations for disabilities.

“The biggest mistake I see is not understanding the sensitivity of issues around reasonable accommodation, from emotional support animals to someone with a wheelchair alleging their chair can’t fit through the door,” says David Muller, a shareholder and board-certified specialist in condominium and planned development law with the Naples, Fla., office of Becker & Poliakoff.

“Boards and managers don’t recognize those red flag moments where they’re on the cusp of really getting into trouble and need to bring in a lawyer.”

Improper disclosure of an owner’s medical information is a particular problem. “They might, at an open board meeting, talk freely about an owner’s medical records for a reasonable accommodation request,” Muller says. “Or the manager might send a copy of medical records to the whole board, and they get printed out or passed on to golf buddies.

“Boards and managers have to be extra cautious when dealing with people’s medical information.”

Stay Tuned

In the next issue of CAMI, we’ll get into some more fair housing mistakes that boards and managers should keep watch for.