Your community association may now be liable for the discriminatory actions of residents who harass or create a hostile environment for other residents. A new HUD regulation that went into effect on October 14, 2016 places new burdens on condominiums and community associations, which should take steps to protect themselves. This is a scary proposition for associations when you consider the fact that neighbors have disputes with each other all the time. It is not hard to imagine a scenario where an argument between neighbors could turn into a claim against your association for discriminatory harassment. An association can no longer afford to stay out of such disputes.
What is hostile environment harassment?
As you probably know, the Fair Housing Act prohibits discrimination based on race, color, religion, national origin, sex, familial status or disability. The new rules define hostile environment harassment as unwelcome conduct that interferes with the availability, sale, rental or use or enjoyment of a dwelling and other housing-related activities. The conduct could be a single incident or several occurrences over time. If a reasonable person would find that the conduct is severe or pervasive enough to create a hostile environment, then HUD is likely to find that there has been discriminatory harassment.
Could your association have acted to stop the conduct?
That becomes the key question. The new rules make an association liable for failing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the association knew or should have known of the discriminatory conduct or harassment and had the power to correct it. For example, if one resident is harassing another resident in the community parking lot on the basis of national origin, the association can be held responsible if it doesn’t take immediate action to end the discrimination. In the past, an association’s exposure to fair housing discrimination claims was generally limited to a claim that an association’s policy was discriminatory or that it failed to provide a reasonable accommodation to a disabled resident. Now, an aggrieved party does not even have to complain to the association for it to be liable, if it knew or should have known about the harassment. So, in the above example, if the association’s parking lot attendant or a board member or the community manager observes the harassment and the association takes no action to end the discrimination, the aggrieved party could have a claim against the association.
How can your association protect your community?
If a dispute results in hostile environment harassment, the association must take prompt action and use any authority it has under its governing documents to end the harassment. This can include sending violation notices, conducting hearings, imposing fines, suspension of privileges, and litigation to seek injunctive relief against the harasser. HUD recommends that community associations educate their board members, managers and employees about the types of conduct that could result in discrimination claims under the Fair Housing Act. Associations should enact anti-discrimination policies and act promptly to address any complaints. Associations should use the enforcement provisions in their governing documents to correct and end discriminatory conduct, and mediate disputes between residents.
If your condominium or community association has not already considered the implications of these new regulations, the time to act is now. For more details about the new HUD Fair Housing regulations or to discuss how to develop appropriate policies for your association, please contact Judyann Lee at (301) 251-1180 x 308 or jlee@mcmillanmetro.com