By Kimberly Garno, Esq., Terra Law Firm, P.A.
The U.S. Department of Housing and Urban Development (HUD) has expanded regulations through a 2016 amendment to the Fair Housing Act to eliminate discriminatory practices that occur because of race, color, religion, sex, handicap, familial status, or national origin (“protective classes”) to provide for fair housing throughout the United States. The new amendment aims to protect individuals who experience harassment in housing based on the protected classes above. Not only are those who commit the discriminatory harassment liable, but any agent or employee who knew or should have known of the discriminatory conduct and fails to act promptly to correct the conduct, while having the power to correct it, will be held directly liable for the violation of the Fair Housing Act.
This new language now encompasses community associations and places a duty on them to get involved and “police” the behavior of the residents to take whatever actions it can legally take to end the harassing conduct between residents. If the community association has knowledge of the harassment, the power to stop it, but fails to act, it may be liable. It may be difficult to spot harassment. Harassment can be written, verbal, or other conduct, and does not require physical contact. A community association has knowledge of the discriminatory harassment when a reasonable person would conclude that the harassment is occurring. Knowledge of the harassing conduct can come from a verbal or written account from the aggrieved, another resident, or a friend.
Types of Harassment
HUD specifically identifies two types of harassment: Quid pro quo harassment and Hostile environment harassment. Quid pro quo harassment means “this for that” and “refers to an unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to: The sale, rental or availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction. An unwelcome request or demand may constitute quid pro quo harassment even if a person acquiesces in the unwelcome request or demand.” 24 CFR 100.600(a)(1). Hostile environment harassment “refers to unwelcome conduct that is sufficiently severe or pervasive as to interfere with: The availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction. Hostile environment harassment does not require a change in the economic benefits, terms, or conditions of the dwelling or housing-related services or facilities, or of the residential real-estate transaction.” 24 CFR 100.600(a)(2). Whether hostile environment harassment exists depends upon the totality of the circumstances.
Previous to this amendment, neighborly disputes were handled between the two parties privately. With the new amendment, community associations may need to get involved. As HUD sees it, an obligation for a community association to intervene on behalf of the aggrieved person is created by contract or lease including the bylaws and other governing documents of an association.
Management companies play a role in the intervention as well. Many community associations are managed by management companies. The burden to prevent discriminatory housing practices or end harassing conduct based on the protected classes also falls on the management company. A management company employee, who knows of a resident harassing another, must act (within the scope of the management company’s authority) to end the discriminatory conduct or else the management company may face liability as well. When the management company becomes aware of alleged discrimination, it must notify the association and take reasonable actions within its authority to stop, deter or minimize the discrimination. Advice from legal counsel should also be sought to minimize liability and ensure appropriate action is taken.