Florida Condo & HOA Legal Blog : Florida Condo Lawyer & Attorney : Becker & Poliakoff Law Firm : Condominium & HOA Law Blog

The Federal Fair Housing Act  (FHA) prohibits discrimination in any activities relating to the sale or rental of a dwelling because of race, color, religion, sex, handicap, familial status or national origin. The term "familial status" is defined as one or more individuals (who have not yet attained the age of 18 years) being domiciled with a parent or guardian or a designee of such parent. State statutes (Chapter 760, Florida Statutes) and local ordinances also regulate housing discrimination in regards to age, marital status, political affiliation, sexual orientation and other classifications.  Adding "familial status" to the list of protected classifications made former "adults only" communities either apply for an exemption or change their practices.

The most common exemption is known as the Housing for Older Persons Act (HOPA) exception that applies to communities operating as “55 or over” housing. To qualify for this exemption, the following criteria must be met:

• At least 80% of the occupied units must be occupied by at least one resident over the age of 55;
• The community must publish and adhere to policies and procedures demonstrating an intent by the housing provider (the Association) to provide housing for persons 55 years of age or older.
• The community must engage in adequate age verification procedures and routinely determine the occupancy of each unit to update the community census; and - here in Florida
• The community needs to register with the Florida Commission on Human Relations and keep that registration current.

If the community does not qualify for the Housing for Older Persons exemption, it must allow families with children.  It doesn't matter if there are no other children.  It doesn't matter if the community doesn't have facilities for children or a place for them to play.  A community in Orange City, Florida recently agreed to pay $415,000 in monetary damages and civil penalties after the court found that the defendants violated the FHA by engaging in a pattern or practice of discrimination against families with children.  The Department of Justice prosecuted the lawsuit against the housing provider.

The Fair Housing Center of the Greater Palm Beaches recently filed suit against a condominium association in Boca Raton, Florida for familial status discrimination.  The association first rejected a sale to a man with three children and later refused to approve a tenancy where two children were expected to live in the unit.  Both governmental agencies and private fair housing advocacy groups use "testers" in support of discrimination claims.

If you're not sure your community is in compliance with the requirements of the Housing for Older Persons Act, please consult with legal counsel.

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Pinellas County Assists Homeowner With Battle Against Homeowners Association Over Operation of Assisted Living Facility.

HOA restrictions and covenants typically contain provisions limiting use of the property to a "single-family" residence.  These use restrictions likewise typically prohibit any "business" or "commercial" use of the home.  However, as discussed in other posts on this blog, enforcement of deed restrictions or covenants may implicate other laws, particularly the Fair Housing laws.  Associations are prohibited by Federal, State and many local laws from discriminating against  protected classes.  Unlawful discrimination includes, among other things, the refusal to make a reasonable accommodation in policies or practices and interference with the lawful use and and enjoyment of the residence.

In the past, Florida courts have interpreted Section 419.001(2), (addressing community residential houses), and Section 393.062, (addressing developmental disabilities), of the Florida Statutes as support for the premise that a group home is the functional equivalent of a single family residential unit and does not justify enforcement of deed restrictions to the contrary.  In at least one of the cases the court found that the association must show the use (three unrelated disabled adults) constitutes a nuisance and the mere fact that the residents of the home were not related was not a violation of the single-family use restriction.  Another case found that enforcement of the prohibition against commercial or business use was discriminatory as applied against a particular small group home.

The county has joined efforts on behalf of an owner, based upon a legal memorandum prepared by the County Attorney's Office, after a finding of reasonable cause was issued by the Pinellas County Office of Human Rights.  TBO.com reported the story.

What does this mean for Homeowners Associations?

• First - community leaders and managers must be aware that fair housing laws may impact enforcement or other board decisions.
• Second - it is important to create fair housing policies and procedures to evaluate fair housing claims, requests for accommodations or modifications and the transfer approval process.
• Third - do not treat fair housing investigations lightly.  Work with counsel and the investigating office - the investigators attempt to conciliate these matters before issuing any findings.
• Fourth - review your insurance policies.  Many policies do provide coverage for defense and other costs.

Finally, there are many educational resources available to community leaders and managers.  Take advantage of those opportunities. 

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55 & Older Housing  - what does that mean?

The Federal Fair Housing Act prohibits discrimination because of race, color, religion, sex, handicap, familial status or national origin.  Many States have their own Fair Housing Act - in Florida Chapter 760 of the Florida Statutes is dedicated to discrimination issues that expand the protection to age and marital status. The term 'familial status' generally refers to occupancy by children (person under 18) with parent, guardian or designee of the parent.   So why or how are there 55 & older communities?  Well, every rule has exceptions, right?  The Fair Housing Act is no different. 

The Housing for Older Persons Act (HOPA) is an exception that allows communities to operate as “55 or over” housing. To qualify for this exemption, the following criteria must be met: 

1. At least 80% of the units must be occupied by at least one resident over the age of 55; 
2. The community must publish and adhere to policies and procedures demonstrating an intent by the housing provider (the association) to provide housing for persons 55 years of age or older; and
3. The housing provider must engage in appropriate age verification procedures that includes a community census from time to time.

Ok - at least one person 55 or older must reside in at least 80% of the occupied units.  What do you do with the other 20%?

On April 1, 1999 the United States Department of House and Urban Development (“HUD “) published Federal Regulations implementing the Housing For Older Persons Act of 1995 (“HOPA”).  Basically, HUD does not care how a community handles the 20% “cushion" as reflected below:

There continues to be confusion concerning what is often referred to as the 80/20 split. HOPA states that the minimum standard to obtain housing for persons who are 55 years of age or older status is that “at least 80%” of the occupied units be occupied by persons 55 years or older. There is no requirement that the remaining 20% of the occupied units be occupied by persons under the age of 55, nor is there a requirement that those units be used only for persons where at least one member of the household is 55 years of age or older. Communities may decline to permit any persons under the age of 55, may require that 100% of the units have at least one occupant who is 55 years of age or older, may permit up to 20% of the occupied units to be occupied by persons who are younger than 55 years of age, or set whatever requirements they wish, as long as “at least 80%” of the occupied units are occupied by one person 55 years of age or older, and so long as such requirements are not inconsistent with the overall intent to be housing for older persons.
 

Does that mean a community that desires to sustain is Housing for Older Persons status should let everyone in up to the 20%?  No, not really.  The "cushion" is designed to allow the housing provider (association) to permit exceptions when appropriate.  If a couple resides in a property and one is 55 and the other not, do you, as a community leader or manager, want to be put in a position that requires you to say "you're in violation" if the resident over 55 passes away?  What if the couple gets divorced?  What if someone resides with their adult child?  In our view, the 'cushion' is exactly that - something that protects you or softens the requirements to avoid unpleasant results.

Does your community qualify as Housing for Older Persons?  Community leaders that aren't sure should consult with counsel, as penalties for discrimination (even unintentional discrimination) can be harsh.

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Many communities were marketed as 'adult communities' and the governing documents contain provisions prohibiting permanent occupancy by children.  Are they legal or enforceable?  Joseph Adams provides a brief explanation.

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Court Rules in Favor of Association After Board Requests More Information Regarding Need for Service Animal

U.S. District Court, Northern District of Florida
Case No.: 3:07-cv-97-RV/EMT

On March 12, 2009 the United States District Court for the Northern District of Florida entered Summary Judgment in favor of a condominium association sued for purportedly violating the Fair Housing Acts. Summary Judgment was also granted in favor of the association on a claim of Intentional Infliction of Emotional Distress.

The issue? A request to keep a pet, oops, not a pet, but a certified service animal, on the condominium property.

Shoreline Towers Phase I had a long-standing “no pet” policy. Mr. Hawn knew that at the time he purchased his unit in 2004. However, in 2005, he urged the Board to allow owners to keep pets on the property after he adopted a puppy. The Association took no action in response to that plea.

Over a year later, Mr. Hawn requested permission for a reasonable accommodation due to a disability. As noted elsewhere, the Fair Housing laws require community associations to make reasonable accommodations in policies or practices and allow reasonable modifications to the physical property if necessary to afford a disabled person the equal opportunity to use and enjoy the dwelling. Mr. Hawn claimed he was disabled (within the meaning of the law) and his dog ‘Booster’ was a trained, certified service animal. He also provided the Board with two (2) letters, one from a psychologist who indicated Mr. Hawn suffered from severe panic attacks and prescribed a service animal to help him cope with his disability. The other letter was from a chiropractor who said a service animal would assist Mr. Hawn with mobility issues.

Mr. Hawn likewise addressed this issue again with the board at a meeting, describing how important ‘Booster’ was to him.

The Board requested documentation to support Mr. Hawn’s claim. It also asked for the qualifications of the medical providers that supplied the two letters. There was no response.

A few weeks later the Board requested more information specifically about 1.) the nature of the impairments; 2.) how the pet was necessary to overcome the impairments; and 3.) whether there were other corrective measures that would serve the same or functionally equivalent purpose. The request for permission to keep the pet was denied pending receipt of further information.

Instead of providing additional information, Mr. Hawn filed a complaint with the Florida Commission on Human Relations (FCHR). The investigator issued a finding of “Reasonable Cause” to believe a discriminatory act occurred which prompted Mr. Hawn to file a lawsuit in Federal Court for discrimination in violation of both the Federal and Florida Fair Housing Acts. Mr. Hawn also sought damages for Intentional or Reckless Infliction of Emotional Distress and Injunctive Relief.

Someone is entitled to damages, injunctive relief, or both, from a housing provider for discrimination if they show:

1. They are disabled (as defined by the law) & the housing provider knew or should have known of the disability; and
2. An accommodation (or modification) is necessary to afford the disabled person the equal opportunity to use and enjoy the dwelling; and
3. The requested accommodation (or modification) is reasonable; and
4. The housing provider denied or refused to make the requested accommodation.

The Court found that the Board was perfectly well-within its right to question the disability claim, especially since Mr. Hawn obtained the dog a year earlier, lobbied to change the rules without any mention of a disability and failed to provide further information upon request. Once discovery took place, the Association learned that Mr. Hawn only had two appointments each with the psychologist and chiropractor that wrote the initial letters. The Court found that the information initially provided was not sufficient to prove that the Board “knew or should have known” that Mr. Hawn was disabled and therefore failed to show that the Board knew the accommodation was reasonably necessary. The Court stressed the requests for additional information and the temporary nature of denial, concluding that Mr. Hawn could not show the Board wouldn’t make an accommodation if he was able to show the accommodation was necessary to ameliorate the effects of the disability.

Community associations should learn important lessons from this favorable case. First, it is important for all community leaders and members of the management team to be aware of the obligations of housing providers pursuant to Federal, State and local fair housing laws. Second, requests for reasonable accommodations or modifications cannot be ignored and must be addressed in a logical way. Finally, it is important to consult with legal counsel as these are highly charged and sensitive issues.

We will report on any updates or appellate decisions regarding this case. If you haven’t done so already, please consult with your Community Association Attorney about creating fair housing policies and procedures for consideration of requests for accommodations and/or modifications.

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 Community Associations are Entitled to Request More Information When Determining Whether to Grant Animal Accommodation

Community Associations are often confronted with requests to keep animals on the property as a reasonable accommodation pursuant to the various Fair Housing Acts[1]. This issue is frequently addressed in newspaper articles and television as well as national magazines.  As Kevin’s post from March 17th aptly stated:

the owner needs to provide documentation that he/she suffers from a disability or handicap. This needs to come from a licensed medical professional. The physician must state that the disability involves a substantial impairment in one or more of life’s major functions. In addition, the physician should explain how the animal is needed to overcome or deal with the substantial impairment of a life function.

When an owner or resident does not receive the answer they desire from the Board or Management, filing a discrimination claim with the local enforcement agency is usually the next step. Unfortunately, the investigations seems to lean heavily in favor of the complainants and determinations of “reasonable cause” that a discriminatory act occurred naturally upset community leaders, especially in cases when the members of the board followed the advice of counsel and truly believe they have not engaged in any wrongdoing. At that point the board members often “give in” and negotiate for accommodations that are not believed to be warranted under the circumstances (possibly opening the floodgates for additional requests), usually to avoid the expenses associated with challenging the determination.

Some of the consternation expressed by board members (and other community residents) results from the apparent lack of specificity required on the part of the person requesting the accommodation. Websites have sample letters and forms for physicians and other medical providers to fill out for the purpose of enabling patients to request prescription pets. Investigative agencies reportedly have “approved” these forms. While community leaders and other residents complain about how easy it is to have a medical provider write a letter prescribing a pet as a necessary accommodation, boards don’t have many choices available if the letter, or prescription, contains the information required by law. In fact, some of the investigative agencies have issued a finding of “reasonable cause” solely as a result of an Association’s request for more detailed information concerning the major life function impairments and how the animal will lessen the effect of those impairments.

Recently, however, the United States District Court for the Northern District of Florida granted summary judgment in favor of a condominium association that requested more information from someone requesting a pet accommodation. In Hawn v. Shoreline Towers Phase I Condominium Association, Inc., et al, the Court found that the person requesting the accommodation “failed to establish that the board knew the accommodation was necessary” because he did not provide sufficient information about the major life functions that were claimed to be impaired nor did he adequately described how the pet was necessary to overcome those impairments. As this is an important ruling for community associations, I will post a casenote to this blog explaining the facts and the ruling in detail.

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Condominiums and other common interest housing communities have a long history with trying to enforce their use restrictions. These battles often stir much passion. However, rules that ban or limit the size of dogs, cats and other household pets seem to strike an especially sensitive nerve. Many owners love animals and cherish the companionship that a dog or cat can provide. But such owners often find themselves living in an association with these types of "pet" restrictions. Do they need to try and amend the deed restrictions or move to another complex where pets are permitted? Not necessarily. If they suffer from high blood pressure, high cholesterol or depression a pet just may be the right medicine. In addition to the regimen of statins and anti-depressants to treat these ailments, doctors have now apparently discovered a panacea for these and other related illnesses; the emotional support animal.

The dilemma that many directors face is trying to enforce pet restrictions when an owner produces a doctor's note (often written on a prescription pad) telling the Board that he or she needs the pet to help treat the owner's depression or high blood pressure. While the Board must provide reasonable accommodations for an owner who requests assistance in living due to a disability or handicap, the definition of "disability" has become so broad in its interpretation that almost anything can qualify. A disability or handicap is any condition that limits a person's major life activities (e.g. walking, talking, seeing, hearing, and breathing). Courts now routinely agree that mental illness such as depression or bi-polar disorders are disabilities. Similarly, high blood pressure is probably now a disability. If an owner requests a dog or cat to assist them with their particular disability, the Board may have to permit the pet as a reasonable accommodation.

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