Q: Our association wants to post “swim at your own risk” signs instead of providing lifeguards at our pool. What do we need to do to make sure we’re not liable for any accidents? –Pennsylvania
A: While an association with a private swimming pool is permitted to adopt a “swim at your own risk” policy at its pool and eliminate lifeguards, there are certain procedures and safeguards the association should be sure to enact and follow prior to this occurring.
To begin, the association should create, publish and circulate a policy called “Rules and Regulations for Unattended Pool Use” (or the like) to all of the unit owners. The document should include language similar to the below, in bold letters on the first page:
THIS IS AN UNATTENDED “SWIM-AT-YOUR-OWN-RISK” POOL FACILITY – THERE IS NO LIFEGUARD ON DUTY. USE OF THE FACILITY IS AT THE SOLE RISK OF THE INDIVIDUAL USING THE FACILITY.
PARENTS/GUARDIANS ARE RESPONSIBLE FOR THE SAFETY AND CARE OF THEIR MINOR CHILDREN AND ASSUME ALL RISK(S) IN THIS REGARD.
IN THE EVENT OF A SERIOUS INJURY OR LIFE-THREATENING EMERGENCY, CALL 911 AND THEN CALL THE MANAGEMENT COMPANY AT _________.
ALL OWNERS/TENANTS/RESIDENTS ARE REQUIRED TO COMPLETE A RELEASE OF LIABILITY FORM ON AN ANNUAL BASIS AND RETURN THE FORM TO THE MANAGEMENT COMPANY.
The policy should discuss unattended pool use, that key fobs are required for access to the pool area as the area will have an auto-locking access gate to limit access, issues related to guests and children, food and beverage consumption, and rules for conduct.
In addition to the policy, a liability release should be created and signed by all owners/residents on an annual basis (the association attorney should draft the release and the policy to ensure the association is best protected).
The association should also confer with its General Liability insurance carrier and/or its agent to ensure that the proposed shift to a “swim at your own risk” pool is acceptable from the perspective of underwriting so as to ensure that coverage will be present should a liability incident occur. While an association can never protect against all liability and risk for accidents or other incidents, it can assure that proper insurance is present to attempt to offset the risk.
As it relates to the physical pool area, there should be appropriate “unattended pool area” and/or “swim at your own risk” signage placed in the pool area as recommended by the association attorney and/or the insurer and the association should also verify if the local municipality also has any requirements. The pool area must be locked out from access for safety purposes – typically a self-locking gate system is installed with key fob access in an unattended pool area.
Finally, going from a pool with a lifeguard to a “swim at your own risk” pool can become a potentially contentious issue within any community – given the subject matter, we recommend that the Board and management openly communicate the issue and the proposed switch to all owners before it decides to move forward with it as transparency will serve the best interests of all involved.
The original version was published in the May/June 2019 issue of CAI’s Common Ground Magazine: https://lscpagepro.mydigitalpublication.com/publication/?i=580131&ver=html5&p=67
Chances are, your community association has a virtual presence on the Internet. Whether your association runs its own website, has a site run by a management company or some other third-party vendor, or is active on a social media site, association leaders and Managers should take some steps in order to protect the community association from potential legal problems.
Step one: Have a plan.
All too often, communities go “online” without really having a plan. The end result is usually a disorganized free-flow of ideas and information that serves no real purpose aside from being able to say that the community is online. Instead of simply throwing content on a website, the community’s leaders should determine exactly why they want the community to be online. Determining why the community is going to be online will then automatically serve to determine what gets put online. For example, if the community’s main purpose in going online is to disseminate information relevant to the community to its member-owners, then the content that is posted should be specifically tailored to that audience. Posting content about topics unrelated to information about the community will only distract from the purpose of the association’s website and may lead to unexpected problems down the road.
Step two: Limit content.
From a liability perspective, the Achilles heel for most association websites is the failure to limit content. Content should be limited, by the association, to matters that benefit the community. A community should never allow unrestricted content to be posted to its website, whether it comes from members or non-members. In other words, the official association website is not the place to allow people to post their gripes about the association, its leadership, other owner-members, the municipality, the landscaper, the Manager or a host of other unsuspecting victims. The association website should therefore not contain an “open-posting” forum, bulletin board or other area where people can freely post anything they want to the website. Remember, this content gets posted to the association website, which means that the association can be held responsible for its content. If owner-members want the community to have an online “bulletin-board” to post garage sales, items for sale, recipes, a community calendar and other events, the community should encourage members to submit this information to the designated contact person for the community website, either by email, mail or in person. This person can then compile the information, edit if necessary, and post it to the website.
• Public v. Private Content
With respect to any content that is posted by the association to its website, the difference between public and private content must be examined very carefully by the association. In a nutshell, public content is content that the whole world can see, for example, the association name, the location of the community, amenities and photographs of common areas. Public content is generally included in an association website to show people why that community is, in fact, a great place to live. Some associations post association documents, like committee forms, budgets, meeting minutes and other items as public content. Generally, associations should post these items to a designated “owners-only” area that requires a username/login and a password for access. While people who do not live in the community might, for some odd reason, want to read the association’s budget or check out last month’s meeting minutes or a blank architectural review committee application, they are not entitled to have access to these documents. These types of documents are relevant to those who live in the community and access to them should therefore be limited to residents.
An association’s controlling documents might provide the association with the ability to post information on a community bulletin board, electronic or otherwise, including the names of owners that are more than 90 days delinquent on their assessments. This information should not be posted to the “public” portion of the website because of privacy concerns and fair credit issues. For instance, if Mrs. Jones in unit 2B is 120 days in arrears on her assessments, a quick Internet search of “Mrs. Jones, unit 2B, town of XYZ” might provide this information to a potential employer, creditor or other person that might wrongly or illegally hold it against Mrs. Jones. Sometimes sharing information becomes a problem not only for those whom are the subject of the information, but also for those who are innocently providing the information for some good-faith purpose. Remember, the general rule is that once information is out in cyberspace, it can’t be taken back or permanently deleted. Therefore, it is better to ensure that the content that is posted on the association website is really content that is safe for public consumption.
Dealing with private content is a bit trickier since there are two levels: (1) private content which all members of the community have access to; and (2) private content specific to each individual owner. All members might have access to association forms and documents. If an association wants to post its various community documents online for the benefit of its owner-members, the association can easily set up a designated area that requires a login and password to gain access to this downloadable information. The designated website administrator should be the only person able to upload documents to the website, so that the association can control which documents are posted.
Associations should also include the community’s online bulletin board, calendar and contact information for the Manager in the private members-only area rather than on the public portion of the website. While this is “private” content which only members of the community can view, associations should limit the content that goes in this area just as they limit the content that goes in the public area of the website. For example, while the association might be allowed to post the names of owners that are more than 90 days delinquent on their assessments, it doesn’t mean that the association should do it— even on the “private” portion of the website. Common sense should come into play and an evaluation of why the association is posting this information should be undertaken. Moreover, if it decided that this arrearage information will be posted to the private portion of the website, the association must uniformly apply this standard to all members of the community on a consistent basis, and not just a handful of people in a piecemeal fashion. Otherwise, the association might find themselves defending an “unequal enforcement” or defamation to reputation lawsuit brought by the owner that feels like they were singled out by the association.
The second level of private content, content that is specific to each individual owner, is an area that is ripe for potential legal problems if the information were to get into the wrong hands. This content includes, but is not limited to, banking and account information for electronic assessment payments by owners, the owner’s account history and other Personally Identifiable Information (PII) like Social Security numbers, vehicle license plate numbers, birthdays, private telephone numbers and an owner’s age. Therefore, if an association chooses to post this content on the Internet, it must do so with the understanding that this information is confidential in nature and every possible precaution must be undertaken to protect this information. Aside from the normal login & password requirements, the portion of the site should also utilize a secure connection (usually Transport Layer Security, or TLS, in the form of an “https” page over the Internet) to protect the information. Associations should use a qualified, professional management company to provide such a service or a third-party vendor that specializes in this area of information technology. Retaining a third party to handle managing and protecting the private content is a good idea, but this may not completely absolve an association from liability should there be a breach of information. However, every association should strive to be proactive when it comes to protecting private content. A failure to be proactive can lead to potentially devastating consequences for an affected owner and a strong likelihood that the association will face some sort of legal liability for the breach.
Step three: Monitor, monitor and monitor some more.
If an association decides that it wants to allow some level of interactivity or unrestricted posting on its website, then it is imperative that the association monitor what is being posted on the site. Monitoring the content that is posted to the site should be done on a consistent, timely basis by a designated moderator. The moderator should enforce the ground rules that must be listed on the site as it pertains to posting. Ideally, the association should have a policy for posting that the site visitor must agree to prior to being able to post any content to the website. Any violation of the policy can be grounds for removal of the post and a ban on all future posts on the association’s website. This type of content monitoring and moderation can also be performed on social media websites like Facebook, so long as the association sets up and runs the social media page on behalf of and in the name of the association. Never allow an owner or some other person to set up a social media page on behalf of or in the name of the association, because (a) others may think it is the official association page and (b) the association won’t be able to manage/restrict the content on the page. The future trend is for the association to create an acceptable use policy for members who want to post to an “open” association website as well as a social media policy identifying the association’s social media pages as the official page.
Finally, while implementing acceptable use and social media policies and monitoring posted site content is surely proactive behavior, these actions can’t completely relieve an association of potential liability for improper, damaging, false, inflammatory or defamatory content that is posted to the association’s website or social media page. The key is to never acquiesce, either by way of action or by a failure to act, to potentially harmful postings on the association site.
Step four: Be on the lookout for the association in cyberspace.
Cyberspace, like outer space, is a seemingly endless place. Just as exploration of outer space is possible, so is exploration of the Internet. However, rather than using spacecraft, all we must do to explore the Internet is log a few keystrokes. In other words, we can utilize the myriad of search tools available on the World Wide Web to pinpoint the exact information we need. Using sites like Google and Yahoo!, for example, we can search most of the information that is publicly available on the Internet for free and with very little effort.
Thus, my advice is to perform a search, every so often, on the association’s name. This is due to the prevalence of copycat websites which purport to be the official association site, as well as an increasing number of “anti-association” sites created by disgruntled owners, former owners, non-community member neighbors or others that have an axe to grind with the association. An association should act quickly to remove a website which purports to be the official site. This is no easy task, and it usually involves litigation against the copycat site operator.
Similarly, should an “anti-association” website be located which contains negative, inflammatory, defamatory, false, confidential or damaging information on the website, the association must take affirmative steps to try and have this website taken down or at least have the harmful information removed from the site.
On social media sites, associations may discover unofficial pages run by owners, former owners and others, related to the association. If run by current owners, the association should ask the owner to remove the non-official page and ask all owners to join, “like,” or follow the official page for the community.The situation is a bit more problematic when groups of owners maintain their own page. These members of the community may use the social media page, which is sometimes public in nature due to a lack of privacy restrictions set up by the page administrator, to vent about issues of concern to the community. Association leaders or Managers should try to monitor these pages, if at all possible, and do the best they can to have the social media users limit their comments about the community or other owners. Of course it’s not always possible find every page that is somehow related to the community, but if one is found efforts should be made to try and protect the interests of the community.
Finally, community leaders, Board Members and Managers should avoid connecting with association members on social media sites. By limiting their virtual relationships, they can avoid issues surrounding favoritism and ever-present fiduciary duty issues. If not “friending” others in the community is simply not possible, then the community leaders and Manager must refrain from posting comments about the community or community issues on any website that is not designated as an official community site. Similarly, even if the community leaders and Manager are not posting comments about the community or community issues on their own or their friends’ social media walls, they have an obligation to look out for the best interests of the association when reading comments that are made by others about the association.
Associations must be proactive in cyberspace, in order to preserve the “virtual brand” of the association and protect the best interests of the association. When there is doubt as to what to do, association leaders and Managers should seek the advice of qualified legal counsel so the association can stay in control and stay out of court.
By Edward Hoffman, Jr., Esq.
* The content for this Blog post is based upon the prior written work of the author as originally published in the November/December 2011 issue of Community Assets magazine and the May/June 2012 issue of Common Ground magazine.
As Bob Dylan noted in 1964, “The Times They Are A-Changin’.” While this anthem of societal change may seem unrelated to the 2011 residential real estate market, in actuality, Dylan’s poetic title track serves as a template for today’s buyers. Back in 1964, most buyers were limited to “traditional” home ownership. Today’s buyers have a myriad of options, including living in a common interest community (CIC).
In a nutshell, CICs are formal legal entities (usually non-profit corporations) created to provide a common basis for the maintenance and preservation of the homes and/or the property contained in the community. In Pennsylvania, CICs are generally set up as either homeowners’ associations (HOAs) or condominium associations. CICs are subject to the statutes that govern both non-profit corporations and common interest communities. Most homes that are located within a CIC are purchased subject to Covenants, Conditions & Restrictions (CC&Rs), which are restrictions placed upon each home to maintain uniformity within the community. This uniformity will hopefully lead to a preservation of property values for the homes located within the community. Homeowners pay dues or assessments so the CIC can pay expenses related to maintaining common property in the community, including roads, gated entrances and drainage basins and often to provide various services and/or amenities that are common to all of the homes in the community, such as trash removal, snow removal, security, landscaping, a fitness center, a swimming pool, a community center, or a playground.
Today’s buyers interested in purchasing a home in a CIC should consider a few important things, including:
Reserves
Make sure that the reserve funds set aside for maintenance of common areas are adequate to fund a large scale capital improvement project, like repaving a road or replacing a roof. Owners will be issued a special assessment to pay for the project in addition to the normal assessment if the reserve funds are not enough. If not enumerated in the resale certificate issued to the buyer prior to closing, the buyer should ask for a breakdown of the reserve funds as well as expected, upcoming capital expenditures.
Budget
Ask the CIC Association or the seller for a copy of the budget. Pay careful attention to the Association’s outstanding debts and liabilities, as well as the percentage of homeowners that are not paying their assessments. If the majority of homeowners are not paying, this spells financial trouble for the Association as well as its member-owners. This could also have a negative impact on a potential buyer’s ability to obtain a mortgage to purchase a home in a condominium association. Freddie Mac, Fannie Mae and the Federal Housing Administration, which purchase and/or insure a majority of mortgages, place a 15% cap on assessment delinquency rates in order to approve lending for homes in the community.
Insurance
Ask for a copy of the Association’s insurance policy to make sure that the community’s coverage is adequate. This is separate and distinct from an owner’s homeowners’ insurance policy. Ask your insurance agent to look at the Association’s policy. Coverage should include but not be limited to general liability coverage with no general aggregate, director & officer liability coverage, environmental impairment coverage, guaranteed replacement cost coverage and employee dishonesty coverage.
Number of Investment Properties
If a potential buyer is looking to live in the home as opposed to using the home as an investment vehicle or rental property, the buyer should look into the percentage of homes that are actually owner-occupied versus how many are leased to tenants. A high number of rental properties in the community could mean that a low level of owner involvement is present in the community. A high level of rental properties in a community can also have a negative impact on a potential buyer’s ability to obtain a mortgage to purchase a home in a condominium association. Freddie Mac, Fannie Mae and the Federal Housing Administration currently require a 51% owner occupancy rate in order to approve lending for homes in the community.
Covenants, Conditions & Restrictions (CC&Rs)
Look at the CC&Rs for the community to make sure that you, as a potential community resident, can live with the limitations imposed on all owners in the community. For instance, many communities require that curtain backs–the side of the curtain that faces the window–be one color so that all of the community’s homes have a uniform appearance from the outside. If you must have fuchsia curtains for the world to see in every one of your windows, then perhaps buying a home in a common interest community is not the best choice for you.
Homeowners living in a CIC enjoy many attractive benefits and amenities, including security, access to recreational facilities and activities, and fewer worries about property maintenance. By carefully reviewing contracts and asking questions, homeowners will be able to determine whether living in a particular community is right for them.
By Edward Hoffman, Jr., Esq. Originally published in Lehigh Valley Marketplace, December 2011
It’s safe to say that there’s no avoiding social media use these days whether it is for personal use, commercial use or even for the benefit of a Community Association. So just how should your Association be handling social media?
In a nutshell, the Association should own its online presence. To begin, every Association should copyright its official, corporate name, as well as other names that may frequently be utilized. This may serve to prevent others from being able to use the Association’s name online.
The Association should also affirmatively run its “official” online presence as it is good practice to never allow an owner or some other person to set up a social media page on behalf of or in the name of the Association because (a) others may think it is the official Association page and (b) the Association won’t be able to manage/restrict the content on the page. If an owner is hosting such an unofficial social media page, the Association can politely ask the owner to remove the page and can concurrently direct all owners to “join” the “official” social media page for the community by informing the owners by way of newsletter, e-mail or otherwise. If an owner or other person who is hosting the “non-official” social media page refuses to take it down, the process of trying to have an “unauthorized” Association social media page removed from the hosting social media site frequently involves litigation and can be lengthy, expensive and stressful for an Association to endure. In addition to the logistical and economic aspects involved in such an undertaking, first amendment freedom of speech issues would most certainly be implicated, and the end result is not guaranteed. However, this being said, the Association most certainly has a duty to at least make a reasonable effort to deal with any unauthorized sites which purport to be the Association site, regardless of outcome.
As for Association run social media, it is recommended that Associations create an Acceptable Use Policy (AUP) for members who want to post as well as a similarly structured social media policy (SMP) identifying the Association’s social media page(s) as the official page(s) for resident use. Having owners sign a copy of each policy would put them on notice as to the existence of each policy and may dissuade negative behavior associated with a breach of either policy. While the legal enforceability of each type of policy in a Community Association setting currently lies in uncharted waters, given the prevalence of technology in a Community Association setting these issues will most certainly be litigated at some point in the near future. An example of what the AUP should provide for includes, but is not limited to, the following:
The posting of harassing, discriminatory or otherwise threatening comments and/or material is prohibited;
The posting of pornographic, obscene, hateful, incendiary, violent, unlawful or otherwise illegal comments and/or material is prohibited;
The uploading of copyrighted material or images is prohibited;
The posting of defamatory comments of any kind is prohibited;
The posting of personal views as representing those of the Association is prohibited;
The posting of “junk” messages, advertisements or other solicitations, not related to the Association in any way, is prohibited;
The Association reserves the right to remove offending post(s) without any prior notice and/or reserves the right to terminate access to any person who does not abide by the posting policy.
Any violation of the AUP can be grounds for removal of the post and a ban on all future posts on the Association’s website. This type of content monitoring and moderation can also be performed on social media websites like Facebook, so long as the Association sets up and runs the social media page on behalf of and in the name of the Association.
While implementing acceptable use and social media policies and monitoring posted site content is surely proactive behavior, these actions can’t completely relieve an Association of potential liability for improper, damaging, false, inflammatory or defamatory content that is posted to the Association’s website or social media page. The key is to never acquiesce, either by way of action or by a failure to act, to potentially harmful postings on the Association site. Associations should contact their insurance professionals and inquire about obtaining standalone cyber-liability insurance and/or adding a cyber-liability rider to their current insurance coverage in an attempt to insure against and offset any potential liability to the extent possible. Such insurance should cover employee technology use, data breach and notification issues as well as “other” potential liability that may arise from and/or out of the Association’s online presence (i.e., defamation, fair credit issues, etc.).
Finally, community leaders, Board Members and Managers should avoid connecting with Association members on social media sites. By limiting their virtual relationships, they can avoid issues surrounding favoritism and ever-present fiduciary duty issues. If not “friending” others in the community is simply not possible, then the community leaders and Manager must refrain from posting comments about the community or community issues on any website that is not designated as an official community site. Similarly, even if the community leaders, Board Members and Manager are not posting comments about the community or community issues on their own or their friends’ social media walls, they have an obligation to look out for the best interests of the Association when reading comments that are made by others about the Association.
When a board member or community manager hears the phrase “fair housing”, many thoughts come to mind regarding what this means, and how it may impact their association, but, more often than not, their perceptions are based on historical misinformation passed on to them by others who themselves did not properly understand fair housing. The purpose of this blog post is to properly educate community leaders on fair housing laws and principles and to discuss real-word application to community associations.
Fair Housing Law
While many states, like Pennsylvania, have adopted their own fair housing laws at the state level, for the sake of brevity this discussion will focus on federal fair housing law as federal law applies to every state. Title VIII of the Civil Rights Act of 1968 (“Fair Housing Act” or “FHA”), 42 U.S.C. §§3601 – 3631, and its 1974 amendment, made it illegal to threaten, coerce, intimidate or interfere with anyone exercising a fair housing right or assisting others who exercise that right, or to advertise or make any statement that indicates a limitation or preference based on a protected class, which includes race, color, national origin, religion or sex (gender).
The Fair Housing Amendments Act of 1988 (FHAA) added two more protected classes to the FHA: (1) familial status; and (2) individuals with disabilities. Familial status includes the presence or expected presence of children under 18, pregnant women and individuals securing the custody of children under 18. Exemptions to familial status include when the housing is planned and managed for people 55 years of age or older (such as in an age-restricted “over-55” community) and the policies and procedures that demonstrate its intent to qualify for the exemption are followed and published. A “disability” under the FHA is a mental or physical impairment that substantially limits one or more major life activities and can include sensory issues, AIDS/HIV as well as persons recovering from alcohol or drug addiction.
The FHA applies to community associations because the FHA prohibits discrimination, by the association, related to any services and/or facilities the association provides related to the residential housing in the association. 42 U.S.C. §3604(b).
Fair Housing Discrimination under the FHA
The US Department of Housing and Urban Development (“HUD”) has interpreted the FHA to include two types of discrimination: Disparate Treatment and Disparate Impact (also known as “Discriminatory Effect”). Disparate Treatment involves discrimination due to different treatment, i.e., treating someone differently because of race, color, sex, religion, national origin, familial status or disability. Disparate Impact involves discrimination by different impact, i.e., when a neutral policy or procedure has a disproportionately negative impact on a protected class.
While most discrimination complaints brought under the FHA have been brought under a theory of Disparate Treatment (it is noted that in the case of associations specifically, claims based upon a failure to reasonably accommodate a disability are the most frequent Disparate Treatment complaints made by owners), board members and managers must recognize that claims brought under a theory of Disparate Impact appear to be a growing phenomenon. In fact, in 2013, HUD issued a final rule entitled “Implementation of the Fair Housing Act’s Discriminatory Effects Standard”. This final rule provides that if a practice has a “discriminatory effect”, HUD (or a private plaintiff) can establish liability under the FHA even if a facially neutral practice has no discriminatory intent. The United States Supreme Court recently (June 25, 2015) held that Disparate Impact claims are cognizable under the Fair Housing Act (see Texas Department of Housing and Community Affairs (TDHCA) v. Inclusive Communities Project, 13-1371). This case is now the law of the land as it relates to making Disparate Impact claims under the FHA; what this means for associations is that although an association may not intend to discriminate against a class or group of people through a policy or practice, a violation of the FHA may still be found if the policy or practice has a disproportionally negative impact on a protected class. Frequently discussed examples include criminal background checks, rental restrictions, credit checks and the adoption of policies related to placing restrictions on children for swimming, riding bicycles on the property and parental supervision requirements.
Board members and managers should be aware that the FHA allows for the imposition of severe civil penalties, including fines, against the association and/or against individual board members, for a finding of discrimination under the FHA, as well as the imposition of criminal fines and possible prosecution and imprisonment for violations of the FHA that involve coercive threats or intimidation.
The Most Common Fair Housing Complaints in Associations
1. Failure to provide a “reasonable accommodation” for a disability
The FHA provides that a “reasonable accommodation” must be provided when such an accommodation may be necessary to afford a person an equal opportunity to use and enjoy a residential dwelling – in the context of a community association, this includes the common areas and facilities available to all owners in the association. As it relates to this issue, the most frequent question that arises by board members and managers is: what is a “reasonable accommodation”?
A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling. The owner seeking the accommodation must actually request the accommodation. The association must grant the request for the reasonable accommodation unless the accommodation imposes an undue financial and administrative burden on the association or causes a change or alteration to an existing policy, practice or service that fundamentally alters the nature of the policy, practice or service. Whether or not a requested accommodation imposes an undue financial/administrative burden and/or fundamentally alters the nature of a policy, practice or service is determined on a case-by-case basis.
A. ANIMALS
Perhaps the most common request made to associations for a reasonable accommodation relates to animals. It is more common than not for an association to restrict animals (this is often entitled “pet rules” in the controlling documents) in some manner – whether it is an absolute ban or a restriction on species, weight or size, chances are that some type of animal restriction exists in nearly every association.
Reasonable accommodation requests for animals are sought by owners in relation to the accommodation of a disability; because a disability under the FHA can be physical, mental, sensory, AIDS/HIV and include persons recovering from addiction, the request can come to the association for a myriad of reasons.
The owner requesting the accommodation must offer proof of the disability unless it is readily apparent. The association should be careful in how it approaches the request and responds as making the request burdensome on the owner or delaying the request may give rise to a claim of discrimination. There also must be a reasonable relation between the disability and the accommodation requested, i.e., the animal. An owner’s failure to provide such information would relieve the association from liability for a charge of discrimination in denying the request. Generally, an owner must obtain documentation from a physician, psychiatrist, social worker or other mental health professional that the animal provides support that mitigates at least one identified symptom of the disability. In doing so, however, it is important to note that the owner need not disclose the specific details of the disability nor provide a detailed medical history to the association. There are two classes of animals related to reasonable accommodation requests:
i. Service Animals Under the Americans With Disabilities Act (ADA), a service animal is an animal that is individually trained to do work or perform tasks for the benefit of an individual with a physical, intellectual, and/or a mental disability, i.e., guiding individuals with impaired vision, providing protection or rescue work, pulling a wheel chair, or retrieving dropped items. Under the Americans with Disabilities Act, service animals are limited to dogs and miniature horses. Establishing that the service animal is necessary in order to use and enjoy the residence is critical. The owner is not required to provide proof of training or the certification of the animal. The association may not request a pet “fee” or “deposit” be paid by an owner that requires a service animal because the service animal is not a “pet”, but if the animal causes damage to a common area, the owner may be required to pay for the cost of repair. Service animals are permitted in all areas of the residence and the common areas.
Because HUD interprets the FHA to require access for individuals who use service animals, associations should initially follow the analysis for assessing whether an animal is a service animal under the ADA. The ADA regulations generally require state and local governments and public accommodations to permit the use of service animals by an individual with a disability. For support animals and other assistance animals that may be necessary in housing, although the ADA does not provide for access, associations must comply with the FHA, which does provide for access (specifically, under the Fair Housing Act, associations are obligated to permit, as a reasonable accommodation, the use of animals that work, provide assistance, or perform tasks that benefit persons with disabilities, or provide emotional support to alleviate a symptom of effect of a disability). If the service animal is a dog, and the individual identifies at least one action the dog is trained to take which is helpful to the disability other than emotional support, the dog should be considered a service animal and permitted in housing, including public and common use areas. Associations should not make further inquiries. If no specific work or task is identified, the dog should not be considered a service animal but may be another type of animal for which a reasonable accommodation may be required. Emotional support, comfort, well-being, and companionship are not a specific work or task for purposes of analysis under the ADA. For more information see the HUD Assistance Animal Notice (AAN) (FHEO Notice 2020-01).
ii. Emotional Support/Companion Animals Associations have seen an explosion of emotional support/companion animal reasonable accommodation requests over the last five years. Emotional support/companion animals provide some therapeutic benefit to a person with a mental/psychiatric/emotional disability, and do not require specific training like a service animal. The mere presence of the emotional support/companion animal mitigates the effects of the emotional or mental disability for the person with the disability. Emotional support/companion animals can be virtually any species of [domesticated] animal. An owner requesting an emotional support/companion animal as a reasonable accommodation must demonstrate a relationship between his or her ability to function and the companionship of the animal. The association may not request a pet “fee” or “deposit” be paid by an owner that requires an emotional support/companion animal because the animal is not a “pet”, but if the animal causes damage to a common area, the owner may be required to pay for the cost of repair. Emotional support/companion animals are permitted in all areas of the residence and the common areas.
B. PARKING ISSUES
Requests for “assigned” (or relocated) parking spaces are probably the second most common requests made to associations for a reasonable accommodation under the FHA. The parking space requests are made by owners seeking to accommodate a disability. Like with any reasonable accommodation request, an owner requesting the parking accommodation must offer proof of the disability unless it is readily apparent and there must be a reasonable relation between the disability and the accommodation requested, i.e., the assigned or relocated parking space. Whether or not an association must grant the request for an assigned or relocated parking space depends on the type of parking that exists in the community. For example, if the association has unassigned parking spaces in common areas, the association must accommodate the request by the disabled resident to use a spot closest in proximity to the owner’s residence or wide enough to accommodate an “accessible” van. Finally, courts have held that the association cannot rely upon restrictions in governing documents to deny a reasonable accommodation request for parking.
C. HOARDING
As counsel to many HOAs and condominium associations, my clients have repeatedly asked me what, if anything, they can do about a hoarder in the community. While the answer was never simple, and often focused primarily on health and safety issues, I soon realized that fair housing principles were also relevant to the issue as some jurisdictions are actually beginning to recognize compulsive hoarding as a “disability” under the FHA. The thrust of the argument pertaining to compulsive hoarding being recognized as a disability under the FHA is that compulsive hoarding is founded in some form of Obsessive-Compulsive Disorder (OCD) and is therefore to be treated as a mental illness.
2. Failure to provide a “reasonable modification” for a disability.
Another type of disability discrimination prohibited by the FHA is a refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises. What exactly is a “reasonable modification”?
A “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. The owner seeking the modification must actually request the modification, and the owner seeking the modification must pay for the modification that is sought. Reasonable modifications can include structural changes to interiors and exteriors of dwellings (i.e., widening doorways) and to common areas (i.e., steps and walkways). A request for a reasonable modification may be made at any time during the ownership of the residence. The FHA makes it unlawful for an association to refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises. An association’s governing documents cannot form the basis of a denial of a request for reasonable accommodation.
3. Violation of FHA – Familial Status.
When an association implements rules and regulations which treat people differently because of their age (i.e., adults vs. minors), this can be viewed to negatively impact families with children under the age of 18 and, therefore, may constitute familial status discrimination in violation of the FHA under a Disparate Impact theory. The most commonly raised discrimination claim in an association context pertaining to familial status is, without doubt, related to rules and regulations concerning swimming pool use.
A. Adult-only areas for pools.
While the idea of an “adult-only” swim area or pool seems like a great idea on its face, courts have held this to be a discriminatory policy under the FHA because it has the impact of treating families with children less favorably than those without children. See, e.g., Landesman v. the Keys Condominium Owners Association, 2004 U.S. Dist. LEXIS 21746 (N.D. Cal. 2004) and Llanos v. Estate of Anthony Coehlo, 24 F. Supp. 2d 1052 (E.D. Cal. 1998).
B. Required adult supervision at pools.
While virtually every swimming pool in the United States seems to have a sign posted somewhere near the pool that reads “adult supervision required at all times”, courts have invalidated requirements for the supervision of minor swimmers under the premise that safety judgments about a child’s swimming ability are to be made by an informed parent, not some entity. See e.g., Iniestra v. Cliff Warren Investments, Inc., 886 F.Supp. 2d 1161 (C.D. Cal. 2012) and Llanos v. Estate of Anthony Coehlo, 24 F. Supp. 2d 1052 (E.D. Cal. 1998).
Conclusion
This post only touches upon fair housing laws and principles and their application to community associations and is not meant to be exhaustive in nature. There are many other issues that have not been discussed (such as accessible design and construction), along with other analyses and pitfalls that can exist in an association setting as it relates to the FHA, and each will be dependent upon the specific facts and circumstances presented at any given time as well as the current status of the FHA and other applicable laws.
Finally, it cannot be stressed enough that associations should confer with counsel as soon as possible when triggering issues arise — this will give the association the best chance at compliance and will serve to lessen the risk that the association will face a potentially devastating finding as it relates to a violation of the FHA.
– Edward Hoffman, Jr., Esq., CCAL
Content in this post is, in part, based upon the author’s material originally published in the September/October2015 issue of Community Assets magazine. Portions of this post also appeared in a prior article written by the author, “All’s Fair”, in the July/August 2014 issue of Common Ground magazine (beginning at p. 41), Volume XXX, Number 4, published by the Community Associations Institute, 6402 Arlington Blvd., Suite 500, Falls Church, VA 22042.
