Complying With Fair Housing Law In The Management Of Common Areas And Amenities

This month, we are going to look at fair housing compliance related to the operation and management of the leasing office, common areas, and amenities, such as pools and fitness centers, within your community.

You may think that you are in compliance with fair housing as long as your community does not exclude or otherwise discriminate against applicants based on race, color, or other protected characteristics. But fair housing laws extend beyond policies and procedures involved in deciding who may live in your community. They also apply to the rules governing how applicants—or anyone else visiting the community—are treated.

One of the major considerations is accessibility for persons with disabilities. As fair housing expert Anne Sadovsky notes, accessibility is a huge issue for communities, particularly as the Baby Boom generation ages. Though age is not a protected characteristic under federal fair housing law, many more people are expected to qualify as individuals with disabilities under fair housing law.

To meet the needs of the aging population, you should pay attention to accessibility when reviewing plans to update your leasing office or amenities such as your business center, fitness center, or laundry facilities. The bottom line, according to Sadovsky: It makes good business sense to make all areas accessible.

The way in which you manage common areas and amenities also could lead to fair housing trouble. Maximizing safety while minimizing potential liability—particularly for injuries to children—is a key concern for pools, fitness centers, and other amenities. Nevertheless, you must ensure that safety rules do not inadvertently run afoul of fair housing protections for families with children under age 18.

In this issue, we will explain fair housing considerations affecting your leasing office, common areas, and amenities. Then we'll suggest six rules to follow to avoid potential fair housing problems associated with managing those facilities. Finally, you can take the COACH's Quiz to see how much you have learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits housing discrimination based on disability, race, color, religion, national origin, sex, and familial status. The rules govern all areas within your community, including common areas, amenities used by residents and guests, and facilities that are open to the public. Examples include:

• Leasing offices;

• Walkways and parking lots;

• Hallways and vestibules;

• Recreational facilities, such as pools, fitness centers, basketball and tennis courts, spas, and hot tubs;

• Business centers; and

• Community meeting rooms.

Accessibility is an overriding concern in the operation and management of these facilities. It's a complicated issue, particularly since communities may be subject to one or more federal laws, as well as state and local laws and building codes. You'll need professional help to navigate technical requirements if you are considering new construction or renovations, but it's important to have a basic understanding of how they all work together to avoid fair housing problems.

The FHA tackles the subject of accessibility in public and common areas within communities in two ways—through design and construction standards applicable to newer housing and through requests for reasonable modifications or accommodations for individuals with disabilities.

Design and construction standards. The FHA's design and construction standards require accessible and usable public and common use areas in all newly constructed multifamily dwellings of four or more units intended for first occupancy after March 13, 1991. This requirement applies to all parts of the housing outside individual units, including rental and management offices, model units, parking lots, storage areas, indoor and outdoor recreational areas, lobbies, mailrooms and mailboxes, and laundry areas, according to HUD. Common violations include a lack of accessible parking for residents and guests, as well as those using site facilities, such as mailbox kiosks, laundry rooms, garbage Dumpsters, recreational facilities, and leasing offices.

Another FHA requirement for newly constructed buildings is an accessible building entrance on an accessible route. In general, that means you must ensure that an individual with a wheelchair has an unobstructed path into the building from accessible parking areas or public sidewalks unless it is impractical to do so because of the terrain or unusual characteristics of the site. Obviously, steps would prohibit access by a person in a wheelchair, but other common violations include an entrance walk that is too steep or lacks safety provisions, such as handrails, edges, and landings.

Reasonable modification/accommodation requests. In addition to the design and construction standards, the FHA has another mechanism for addressing accessibility problems—regardless of when your community was built—as a reasonable modification or reasonable accommodation for an individual with a disability.

In most cases, an accessibility problem in common areas involves a request for a reasonable modification. The FHA requires communities to permit a resident with a disability, at his expense, to make structural changes to existing premises to afford him full enjoyment of the premises.

Modification requests apply not only to the interior and entrance of individual units, but also to common and public use areas, such as lobbies, main entrances, and parking lots. For example, a community must allow a resident with a mobility disorder to install, at her expense, a ramp outside the building in a common area, according to guidelines on reasonable modifications issued jointly by the U.S. Department of Justice (DOJ) and HUD. Unlike modifications made to interiors of the dwelling, reasonable modifications to common areas, such as modifications made to laundry rooms or building entrances, are not required to be restored at the end of the tenancy.

In some cases, a request related to accessibility may be considered as a reasonable accommodation—which means that the community must pay the costs associated with the request. Parking is a prime example. The joint guidelines note that some courts have treated requests for parking spaces as requests for a reasonable accommodation, even if provision of an accessible or assigned parking space results in some cost to the provider. Other parking accommodations include creating signage, repainting markings, redistributing spaces, or creating curb cuts.

EDITOR'S NOTE: For more detailed information about the FHA's design and construction standards, see the March 2008 issue of Fair Housing Coach, “Ensuring Compliance with the FHA's Design and Construction Requirements.”

6 RULES FOR COMPLYING WITH FAIR HOUSING LAW IN THE MANAGEMENT OF YOUR COMMON AREAS AND AMENITIES

Rule #1: Do Your Homework on Accessibility Requirements

Get to know the accessibility laws applicable to your community. In addition to learning about FHA design and construction requirements, it's important to understand accessibility requirements under other federal, state, and local laws.

For example, the Americans with Disabilities Act (ADA) applies to your leasing office and any commercial enterprise open to the public—such as a convenience store—located within your community. However, common use areas that are for use only by residents and their guests are not covered by the ADA. And if the community receives federal financial assistance, it must comply with the accessibility requirements under Section 504 of the Rehabilitation Act of 1973. When more than one law applies to a community, and there are different accessibility standards for each law, the governing principle to follow is that the more stringent requirements of each law apply, according to HUD.

The same goes for any state and local building codes or laws governing accessibility for people with disabilities. It's important to learn about what's required under city, parish, county, and state laws governing accessibility that apply to your community, Sadovsky says. State or local building codes may differ from those required under federal law, so checking them is an important first step any time you consider renovations to common areas and amenities.

To facilitate your compliance efforts, Sadovsky recommends appointing an employee to be the community's fair housing officer. Training is essential, but that doesn't mean he must know all the answers to accessibility questions. It's more important for him to know where to get the information people need to comply with accessibility requirements, such as from the local HUD office or building department.

COACH'S TIP: Fair Housing Accessibility FIRST, sponsored by HUD, is an initiative designed to promote compliance with the Fair Housing Act design and construction requirements. The program offers comprehensive and detailed instruction programs, useful online Web resources, and a toll-free information line for technical guidance and support at: www.fairhousingfirst.org/index.asp.

Rule #2: Ensure Access to Leasing Office

Accessibility issues are even more important when it comes to your leasing office. Because it serves the public, your leasing office is considered a public accommodation, so it is covered under the ADA. So even if your community is not subject to the FHA's design and construction standards, the ADA would require you to remove architectural barriers if doing so is “readily achievable,” according to HUD.

Sadovsky says that leasing offices are always an issue, especially in older buildings, where entrances, parking facilities, or bathrooms may not be accessible to a person in a wheelchair. In all but a few cases, the relatively small expense to fix accessibility problems pales in comparison to the $50,000 or $100,000 penalty that could result from a violation.

In those few communities where the physical environment makes it financially prohibitive to fix barriers, it's a mistake to simply ignore the problem. No doubt, you'll need professional assistance to meet the legal requirements, but Sadovsky says that she's seen creative solutions to address accessibility issues. For example, she recalled visiting an older community that was built on a hill where there were about 20 steps to the rental office and there was no way to make it accessible with a ramp or elevator. She said the community installed a post at the bottom of the stairs with a bell and a sign to let everyone know that a leasing agent would come down to meet anyone who needed assistance and couldn't reach the office.

Rule #3: Consider Reasonable Modification or Accommodation Requests

If you receive a request from a disabled resident to make any changes to your facilities or rules, take it seriously. Fair housing law requires communities to make reasonable modifications—changes to existing structures—or reasonable accommodations—changes to rules—that are necessary to enable a person with a disability to have the same opportunity as everyone else to fully enjoy the community.

If a resident asks for an exception to your rules for a disability-related reason, treat it as a request for a reasonable accommodation. For example, you may receive a request from a resident with a disability who needs access to your fitness center an hour before or after its regular hours of operation. If there is a disability-related need for the request—perhaps that's the only time someone is available to help him follow doctor's orders to use the treadmill—then you would have to look at whether the request to keep it open an extra hour before or after regular hours is unreasonable. Unless the request imposes an undue financial or administrative burden on the community, or would fundamentally alter your operations, you are required to grant the request.

Complaints about access to common areas and amenities in your community deserve particular attention. For one thing, it could alert you to a possible violation of accessibility requirements under the FHA's design requirements, the ADA, or state or local laws. In other words—it could put you on notice of a barrier that you may be legally responsible to remedy.

But even if it's not required under accessibility standards, you may have to grant a request for a reasonable modification to allow access by a resident with a disability to common areas or amenities, such as the pool, fitness center, tennis courts, business center, game room, or community meeting room. If there is a clear connection between the resident's disability and the requested modification, then you must allow the resident to make the requested modification as long as it's reasonable.

COACH'S TIP: Handling accommodations or modification requests for individuals with disabilities are so complicated that federal enforcement officials from HUD and DOJ teamed up to issue guidelines for each. The guidelines are available online, but it's a good idea to get legal help whenever you get such a request.

Rule #4: Ban Bad Behavior—Not Children

Communities have a legitimate reason to adopt rules governing behavior in common areas—such as hallways and parking lots—and while using amenities—such as pools, fitness centers, and business centers. Such rules generally are necessary to prevent damage, protect safety, and minimize potential liability for injuries sustained by residents and guests using your community's facilities. And rules regulating conduct in the common areas within buildings are a legitimate way to prevent disturbances that interfere with residents' quiet enjoyment of their units.

To address these concerns, it's tempting to consider banning children from common areas or amenities. After all, it's not unreasonable to believe that children may be particularly vulnerable to injury in recreational facilities or that loud play in hallways may disturb the neighbors.

Nevertheless, fair housing law protects familial status, so you may not adopt rules that unduly interfere with the ability of families with minor children to use and enjoy the community's facilities. Just as the FHA prohibits you from steering families with minor children away from units on upper floors—where balconies pose safety risks for children—you can't ban children from your pool or fitness center to ensure that they won't get hurt, says Sadovsky.

Example: Last year, a California community agreed to pay more than $618,000 in an out-of-court settlement for alleged housing discrimination based on familial status. The California Department of Fair Employment and Housing pursued the case on behalf of nine families, who accused the community's owners and managers of discrimination by imposing overly restrictive “House Rules and Regulations” on families living at the complex.

The department alleged that the rules, which included prohibiting children from being in the pool after 6 p.m. and playing outside alone—ever—unlawfully restricted the manner in which children could use the common areas of the complex. The complaint also alleged that the management told parents they would be fined and then asked to leave if children were seen playing alone outside their units. In settling the case, the community owners and managers did not admit liability.

For the most part, it's best to adopt rules that focus on dangerous or disruptive behavior in your common areas and facilities—instead of on the age of the person who engages in that behavior. As an example, Sadovsky observes that many communities have a water feature—such as a pond, creek, or fountain—at the entrance. Though if it's intended for visual, not recreational purposes, you may be concerned about injuries to children who may be tempted to jump in on a hot day. To avoid a fair housing complaint, Sadovsky recommends signs and rules to emphasize that it's for visual interest only by banning anyone—not just children—from wading or swimming there.

On the other hand, your community may offer amenities where restricting access to children—or requiring adult supervision—is justified based on safety concerns. To satisfy fair housing law, however, you must ensure that the rules are reasonable—that is, based on objective criteria and tailored to the particular facility. Depending on the risk of injury, it may be reasonable to require adult supervision for anyone under a particular age in some areas—your pool, for example—but to deny access to anyone under a particular age in others—a sauna, for example—based on objective criteria, such as local health and safety laws or manufacturers' instructions. In some cases, it may be an insurance issue—with restrictions imposed by the insurance company to maintain liability coverage for certain areas of the community.

Rule #5: Watch Your Language

Post signs in and around common areas and amenities to let everyone know your community rules. But the language you use—on signs and in written rules—can make all the difference in warding off accusations of discrimination by families with minor children, says Sadovsky.

Make sure that signs outlawing dangerous behavior in common areas apply to everyone, not just children, Sadovsky says. If you are concerned about injuries caused by children riding bicycles on the sidewalk, for example, she recommends that the signs forbid anyone—not just children—from doing so. Otherwise, you could wind up in fair housing trouble for targeting only children.

By the same token, signs simply stating “adults only” or “no children allowed” are a sure way to raise eyebrows, according to Sadovsky. As much as possible, avoid use of the word “children” in favor of generic terms like “anyone” or “person” under a particular age. And indicate the reason for the rule by using the key phrase “for your protection,” adds Sadovsky. So, for example, a sign posted in your fitness center might read, “For your protection, persons under age 14 must be accompanied by an adult.”

Signs need to be clear, and visible to anyone in the vicinity. Make sure signs are posted low enough for someone in a wheelchair to read them. Be careful about putting signs on the backs of doors, where they can't be seen when the door is open.

COACH'S TIP: In your fitness center, Sadovsky says that you may post manufacturers' warnings or make them available in the office to let anyone using gym equipment, saunas, or hot tubs know of any safety and health risks. Often, manufacturers of such equipment warn that they should not be used by people who are under a certain age or who have certain medical conditions.

Rule #6: Be Consistent

Aside from disability-related requests, the key to preventing fair housing trouble is to ensure residents and guests have the same opportunity to use and enjoy your common areas and amenities—regardless of race, color, national origin, religion, sex, familial status, and disability, or any other characteristic protected under state or local law.

Generally, that means that you can't exclude some residents from your pool, fitness center, or meeting rooms based on a protected characteristic. For example, if you allow a Bible study group to use your community meeting room for weekly meetings, then you could be accused of housing discrimination if you deny use of the room to another religious group.

Likewise, it is unlawful if you enforce rules more strictly on some residents than on others based on a protected characteristic. This may be a particular problem at pools, fitness centers, and other amenities at your community, where you may have part-time or seasonal help. Without adequate training, these employees could trigger a fair housing complaint if it appears that they are singling out members of one protected class to punish for rules infractions, while ignoring violations by others.

The bottom line: Make sure that pool monitors, janitors, part-time staff, contractors, and anyone else who may be in common areas where they have contact with residents and guests receive at least some basic fair housing training.

• Fair Housing Act: 42 USC §3601 et seq.

• HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf

• HUD guidance: Reasonable Modifications Under the Fair Housing Act, www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf

COACH Sources

Anne Sadovsky, CSP: Anne Sadovsky and Co., Dallas, TX; (866) 905-9300; anne@annesadovsky.com.

Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.