Magazine article Journal of Property Management

Fair Housing-Condo Style

Magazine article Journal of Property Management

Fair Housing-Condo Style

Article excerpt

In the past few years, a number of condominium associations, along with their management companies, have been sued under the fair housing laws. The federal Fair Housing Act prohibits discrimination in all types of housing, including apartments, townhouses, condominiums, and cooperatives. However, since most condominium board members are not real estate professionals, they are often unfamiliar with the laws. A major responsibility of condominium managers is to keep their boards educated about the fair housing laws. Failure to do so can be costly to the board members, the association, and the condominium manager.

Duties and Responsibilities

Since a condominium or timeshare unit is considered a dwelling, all activities engaged in by condominium associations that discriminate against one of the enumerated classes are illegal because compliance with the Fair Housing Act is a nondelegatable duty, housing providers may not argue that they are not responsible for acts that occur within their sphere of responsibility, even if they have hired a third person to do the job for them. The condominium association board and the management company are responsible for any discrimination they facilitate. However, if unit owners act alone to sell or rent their units without any assistance from the association or manager, then only the unit owners are liable for their acts of discrimination. If the building manager participates in the discrimination by selectively showing units at an owner's direction, the manager and the association will be liable. Similarly, if the association has a first option to purchase a unit and the board exercises the option in a discriminatory manner, the association will be liable for the discrimination.

Because companies and associations are responsible for the acts of their agents and employees, they must see that their agents are welltrained and take prompt action to discipline them when they do not follow the rules of the association or comply with fair housing laws. In addition, adopting written, unbiased policies may be helpful in demonstrating compliance with the law, although it will not necessarily insulate from liability.

The Act makes it illegal to discriminate in the advertisement of a dwelling. The prohibition on discriminatory advertisements is broad and covers both the person who places the ad and the person who publishes the ad. The Act covers not only the written and oral word, but also photographs that may send a message that not everyone is welcome in the property. Publishers of discriminatory advertisements can be held strictly liable even without proof that they intended to discriminate. Thus a condo association that publishes a newsletter in which a unit owner placed a discriminatory advertisement will be liable. The building manager or someone knowledgeable about the fair housing laws should always scrutinize the association's newsletter and advertising to see that it complies with the Act.

Even if there is no proof of any intent to discriminate, policies or practices that have a discriminatory impact on a protected class may be illegal. A discriminatory impact is generally shown through statistics. The persons claiming discrimination has the burden of showing a discriminatory impact. However, once it is shown, the association will have to prove that it is justified by good business reasons. If other means are available that would have a less significant impact on a protected class, the policy will be declared illegal.

For instance, a condo association that enacts a rule that unreasonably limits occupancy, for instance to one person to a bedroom, may be found to discriminate against families with children if the association cannot justify the restriction for health or safety reasons.

Nevertheless, discriminatory impact is not always easy to prove. A recent case involved a board of a cooperative apartment building that voted to implement a plan to convert the building into a condominium. …

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