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The fight began one evening over Mr. X not cleaning his dog’s feces from the common element sidewalk of ABC condominium. Mr. Y stepped in it – and fourteen months worth of fighting, board hearings and a federal Fair Housing complaint ensued. The disagreement between Mr. X and Mr. Y escalated far beyond the bathroom habits of a small dog. Months of complaints to the condominium association board followed with the respective owners pointing fingers at each other for a variety of various bylaw and rule violations. Vicious verbal attacks between the owners took place with the police being called on several occasions. Both owners complained of discrimination and harassment by each other, the board and the association manager. The board sent an abundance of correspondence to both owners to try and resolve the conflict and ensure compliance with the association’s bylaws and rules. Several board enforcement hearings were held. Nothing seemed to help resolve the matter.
Ultimately, Mr. X, an immigrant from Central America, filed a complaint with U.S. Department of Housing and Urban Development (HUD) under the federal Fair Housing Act (FHA) claiming that the board of directors, and the condominium association, was discriminating against him on the basis of his race because ABC Condominium failed to intervene in the contentious relationship between these owners. The complaint shocked the ABC board – how could it be liable for a personal fight between two residents who just couldn’t get along? Why would a condominium association be responsible for the conduct of its residents?
The answer is one that is increasingly being faced by community associations throughout the country. In 2016, HUD adopted new guidelines acknowledging the obligation of housing providers, such as community associations, to prevent severe or pervasive offensive remarks or hostile behavior based on a person’s race, color, religion, sex, disability, familial status or national origin. See 81 FR 63054 (2016).
Under the new guidelines, community association boards must exercise proper care when they receive complaints that residents are being discriminatorily harassed in the community. As a result, associations need to be prepared for claims that their board members, agents, residents or employees have created a hostile environment that harasses a resident who is a member of a protected class. If an owner believes that they are being treated in a hostile manner because residents of another race are getting preferences/treatment they are not getting, as in the case of Mr. X in ABC Condominium, the association might face a claim. If a resident is severely or pervasively harassing another resident on the basis of their status in a protected class, the harassed resident may have a claim against the association for inaction.
Historically, associations have avoided becoming involved in resident-to-resident disputes out of an understanding that community associations lack the authority and resources to resolve such personal conflicts. Acting in compliance with the 2016 HUD guidelines, therefore, represents a significant shift in the enforcement practices of community associations. They must now develop an awareness that not all resident-to-resident disputes can be left to the residents to resolve. Instead, community associations must consider whether resident disputes are based on one of the individual’s protected class and if the harassment related to that protected class is so severe or pervasive that the community association must intervene.
Consider the resident that is making sexually suggestive remarks to another resident in the common elements on a daily basis for months. Consider the resident that is yelling racially discriminatory language at another at the pool. Consider the resident that is interfering constantly with resident children who are trying to use the community playground. Each of these cases is potentially one in which the association must involve itself, if sufficiently severe or pervasive, to prevent one resident from harassing another in their use of the facilities and services of the community.
A community association alert to their obligations under the 2016 HUD guidelines will not only avoid potential harassment claims from residents, but will also prevent claims from disgruntled residents who attempt to use the threat of this type of HUD complaint to avoid a policy, rule or enforcement action of the association they do not like.
As if the burden of addressing resident-to-resident discriminatory harassment claims is not enough, the 2016 HUD guidelines also make community associations liable for third party claims. If a third party, such as a vendor or contractor, is discriminating against one of the community association’s residents in the provision of services or facilities of the association, the association has an obligation to act promptly to prevent such discrimination. If a contractor is sexually harassing a resident at the pool, the association can be held responsible if it fails to promptly correct and end the discrimination, which may include terminating the contract with the contractor. This rule becomes even more onerous for the association when it is understood that the aggrieved resident does not need to complain to the association for the association to be liable. An association could be liable for third party discrimination it knows or should have known about. For example, if a board member or lifeguard observes the harassment at the pool and the association takes no action to end the discrimination, a claim may arise against an association.
Action by the association to correct and end the discrimination by a third party must be prompt, and the association must use all means available to it to end the discrimination. For community associations this can include notices of violation, monetary charges, suspension of privileges and litigation to seek injunctive relief against the offending resident or prompt action to censure and/or terminate a relationship with a contractor.
Discrimination complaints are complex matters to navigate. Each matter must be judged and handled on its own merits. HUD does offer some general guidance on how to deal with these complex matters:
- Educate board members, employees and managers about the FHA and the types of discrimination about which they should be aware and on the lookout for;
- Develop and publish anti-discrimination policies for the association;
- Act promptly to address complaints from residents;
- Mediate disputes between residents; and,
- Use enforcement provisions under bylaws to correct and end discriminatory conduct.
As the saying goes, knowing is half the battle, so educating your community association board and management should be the first step to prevent liability for your association and to create a community in which all residents can live without discriminatory interference and harassment.
Marla Diaz and Roberto Montesinos are partners in the Community Associations practice at Whiteford, Taylor & Preston.