by Beth Mulcahy, Esq.
Short answer: Probably not…
Long answer: Here’s why…
The Civil Rights Act of 1968 along with additional revisions and the Fair Housing Amendments Act of 1988 collectively are known as the Fair Housing Act. The Federal Fair Housing Act (FHA) prohibits discrimination based upon a person’s race or color, religion, sex (including sexual harassment), national origin, familial status (families with children), or disability (includes persons with mental and physical impairments that substantially limit one or more major life activities-blindness, hearing impairment, mobility impairment, HIV, mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, mental illness and group homes).
Many aspects of the fair housing law apply to community associations; therefore, boards should be aware of the association’s requirement to follow the law.
Disability: An individual with a disability is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment.
Discrimination is the treatment of an individual based on their membership in a certain group or category. It involves excluding or restricting members of one group from opportunities that are available to other groups. Discrimination can occur when the community association fails to allow an “accommodation” to the community governing documents or “reasonable modification” to the community’s common elements.
“Reasonable Accommodation” is an alteration to or variance of the association’s covenants, rules, regulations, policies, and services to provide the disabled equal use and enjoyment of his/her home. For example, a community association that has a no-pet policy may be limited in its enforcement if the Fair Housing Act would require the association to grant a “reasonable accommodation” request for a disabled individual with the need of an assistance animal, despite “no pet” restrictions.
“Reasonable Modification” is a modification/alteration to the building, common elements or limited common elements to afford the disabled equal use and enjoyment of his/her home. The fair housing laws require the association to allow the modification to the common elements so the disabled individual can use the facility. For example, a person confined to a wheelchair may request that a ramp be installed in the association’s gym so he/she can use it for exercise.
The Federal Fair Housing Act Amendments of 1988 expanded protections for individuals with all types of disabilities, thus banning the prohibition of “group homes” (a group of unrelated disabled individuals living together in a dwelling) in community associations. However, a “group home” owner will have to request any variance or “accommodation” of the governing documents and show that the variance is directly connected to diminishing the effects of the disability of the residents in the home. The association should request documentation from the “group home” operator that verifies the existence of the disability-related need for the variance. Not all “group homes” are protected under the Fair Housing laws. It is important to separate the illegitimate group homes from the legitimate: 1. current addicts; 2. current substance abusers; 3. current alcoholics; 4. criminals; 5. those with bad credit; and 6. sex offenders are not considered having a disability under the Fair Housing laws. A legitimate “group home” that serves the disabled cannot be prohibited.
However, it is important to note that the association has a right to enforce the same rules and restrictions asked of all residents such as: 1. maintenance of the buildings; 2. maintenance of landscaping; 3. pre-approval of architectural modifications; 4. adherence to parking restrictions; and 5. adherence to noise or other nuisance policies, thus, treating a “group home” like the other residents in the association.
