Tip:
Highlight text to annotate it
X
Hello, my name is Kathy Clark. I'm with the Lawyers Committee for Better Housing.
We've been working with the state of Illinois Department of Human Rights to
develop
a variety of fair housing trainings and to get them
up on the web for viewing in the future. Today
we're going to cover Fair Housing 101, directed at condo associations
and cooperatives. As usual when you are viewing
something for training and educational purposes, it should not be considered
legal advice
and you should consult an attorney if you need such advice.
We’re going to cover fair housing
basic definitions, who's protected,
what types of discrimination are covered under the law.
We’ll answer some questions. We’ll have a special section
on disability including accessibility
and reasonable accommodations and modifications. We’ll talk about
cases that have been brought against condos,
condominiums…condos
and cooperatives and the cost that can
often come with non-compliance with the Fair Housing Act.
We’ll talk about exceptions some best practices that are recommended for
condos and co-ops,
why fair to housing testing is an important component
and how complaints are filed. What is fair housing?
Federal law defines fair housing as the right of all people
to live wherever they choose, have access
to seek, purchase, sell, lease or rent and enjoy the full use
of their homes without being
discriminated against. Without having unlawful interference,
coercion, threats or intimidation by owners, landlords,
real estate agents or any other persons.
There are three types of discrimination:
overt, differential treatment and disparate
disparate impact. Overt consists of
blatant unfair treatment of someone because of their membership
in a protected class. Differential treatment
is unfair treatment of one person compared to another because of their
membership
in a protected class. Disparate impact
is a practice or policy that is applied uniformly but results in a
discriminatory effect on a group of persons
in a protected class. In addition
such a policy is not justified by a business necessity.
Under the Fair Housing Act
which is the federal law also known as Title 8
of the Civil Rights Act of 1968, which was later amended to include additional
categories. It is illegal to discriminate against a person
group of persons under the following protected classes.
Race, color, national origin which includes
ancestry and basically means
where a person or their ancestors were born.
Religion; aspects
relating to religious observance practice and belief.
Sex; including *** harassment, status as a male or female.
It also includes pregnancy-related allegations
and cases dealing with *** harassment.
Disability, both physical and mental
and familial status which is defined as the presence of children in a family
unit.
In addition to the protected classes,
it is mentioned in the Fair Housing Act the Illinois Human Rights Act prohibits
discrimination
based on the following: age 40
over, ancestry;
general ancestral background for instance Hispanic, European etc.
The legal status; being married, single, separated, divorced or widowed.
unfavorable military
discharge; includes RE3 classification
but not RE4 or dishonorable discharge.
Military status such as active duty,
veteran, or member of reserves.
Recent amendments to the state law include *** orientation,
which includes the actual or perceived heterosexuality, homosexuality,
bisexuality or gender related identity.
Whether or not traditionally associated with a person's
designated sex at birth.
Also, order protection status,
a person’s status being protected
by an order protection issued pursuant to the Illinois
Domestic Violence Act 1986
or an order of protection issued by a court of another state
note that Chicago, Cook County and some other jurisdictions have additional
protected classes.
For example, Chicago protects source of income
including housing choice vouchers. Cook County also protect source of income
but excludes housing choice vouchers.
Unlawful actions under Fair Housing laws.
Expressing the intent to discriminate
by placing ads or engaging in real estate transactions.
That can include advertising agencies that produce the ads,
publishers; such as newspaper directories
multiples listing services. It does not
include internet listing services such as Craigslist.
Another unlawful action would be misrepresenting the availability of
property.
This covers rental units and property listings
that are residential.
Refusing to engage in a real estate transaction.
Refusing to accept or transmit a bona fide offer
or refusing to accept an application for instance.
Other
unlawful actions include altering the terms or conditions
for real estate transaction, such as charging someone higher security deposit
or rent amount
based on their being in a protected class. Refusing to allow
reasonable accommodations or modifications for people with
disabilities,
such as denying someone the right to build a ramp for refusing to hold meetings
at wheelchair accessible locations
etc. And we'll talk more about disabilities.
Creating a hostile environment or unreasonably
interfering with someone’s use and enjoyment up their premises,
this could include *** harassment of tenants
having unreasonable rules and restrictions on children.
Such as not allowing them to use the pool are restricting the hours that they
can use a pool
or that they can’t top play outside. Having unreasonable occupancy standards
could violate the Fair Housing Act. This would depend
on the size and layout of the unit or other physical limitations of the property
but in general, two persons per bedroom
is considered reasonable and
can often be used to discriminate against families
by reducing the number of persons per bedroom.
It's important when you're looking at
the number of people in a unit
based on the number of people in a bedroom, that you consider the total
number of people that will be renting.
Not how many adults and how many children there are,
but what is the total number of people. Segregating families or other groups of
people to certain floors
or buildings could be unlawful and failing to comply with the Housing for
Older Persons Act.
We’re going to ask
and answer some specific questions related the condos and co-ops.
First, must condo associations and cooperatives comply with fair housing
laws?
Yes, all members of a condo association or co-op
are responsible for complying with fair housing laws and can be held liable for any
violations. Fair housing laws cover all multi-family housing
regardless ownership. Do fair housing laws supersede
any bylaws, resolutions or rules and regulations
passed condo associations or co-ops?
Yes,
fair housing laws are legal authority beyond the documents
of a condo association or cooperative. Therefore, all policies
and rules of a condo or co-op must be written
and applied in accordance with fair housing laws. Those
who could be found liable for violations include boards
of homeowners associations, individual property owners
and management companies. If found in violation a fair housing laws,
significant penalties including fines and monetary damages may be assessed.
Does a condo association
or cooperative board have the right to choose who lives in their community?
Yes,
but not in a manner that violates fair housing laws. Condo, coop and homeowners
associations
often reserve the right to select or deny owners or tenets.
Using criteria based on valid business reasons such as
acceptable credit history, minimum income, references, etc.
This practice is legal as long as the criteria apply
equally to all applicants. And again,
this is a requirement of boards,
members, property managers, anyone who's responsible for making
selections for the condo or co-op.
There are specific provisions
under the fair housing laws for individuals
with disabilities.
Design and construction requirements
are laid out in the federal law and there are seven
principles. All covered multiple family buildings
must meet certain requirements: that includes buildings
built after March 13th 1991
consisting of four or more units
that are ground level or if all units in the building…
Are in a building that has an elevator.
Housing can be privately owned, federally or publicly assisted.
Including single-family homes if they are in…
Four or more to a
building, apartments, condos, dormitories,
assisted living developments, time sharing properties
and homeless shelters when used as a residence.
So the requirements include, the public common use areas
must be readily accessible to and usable by handicapped persons.
All the doors designed to allow passage into
and within all premises are sufficiently wide to allow passage
by persons with disabilities in wheelchairs. And all
premises within the building units contain the following features
adaptable design:
An accessible route into and through the covered dwelling unit.
Light switches, electrical outlets, thermostats
and other environmental controls in accessible locations.
Reinforcements in bathroom walls to allow later installation up grab bars
around the toilet top, shower stall and shower seat
where such facilities are provided and
usable kitchens and bathrooms such that an individual
in a wheelchair can maneuver about the space.
HUD has published a fair housing accessibility
guidelines booklet
intended to provide a safe harbor for compliance with the accessibility
requirements. Although these guidelines are not the only method
of complying with the Act, they're the most commonly known
and utilized by the industry.
Reasonable accommodations are changes in rules,
policies, practices, or services
necessary to accommodate persons with disabilities.
Such as, designating handicapped parking,
waving a no pets rules for support animals,
providing alternate methods for mail delivery,
holding community meetings or events in locations that are accessible
and providing sign language interpreters for meetings
if there are residents who are deaf.
Reasonable modifications are structural changes so that a person with a
disability
can fully enjoy their home.
Such as installing a ramp for wheelchair access,
installing sturdy grab bars in the bathroom,
modifying the door tension, widening the doorways
for wheelchair access or installing a doorbell that activates a light
instead of sound.
Associations do not necessarily have to pay for reasonable modifications
unless the building is out of compliance with the Fair Housing Act.
Property owners
and associations do need to maintain any modifications made in the common areas.
For example, if a person with a disability pays to have a ramp installed
in a common area
where snow is routinely shoveled, the association has to have the snow shoveled
off of the ramp
as well. Permission to have a reasonable modification
may be contingent on restoring the premises to
its pre modification condition except for normal wear and tear.
This does not apply to modifications in
common areas. The individual
requiring or requesting the reasonable modification
may be asked to pay into an escrow
account in order to pay for restoring the premises
to pre modification condition. Condo associations and cooperatives
must reply to requests for
reasonable accommodation or modification in a timely manner
and are responsible for maintaining modifications
made in common areas. When is a request reasonable?
Well a request maybe unreasonable
if it imposes an undue financial burden
on the condo or co-op. If it imposes an undue administrative burden,
if it fundamentally alters the nature
the operations or puts others in the community in danger.
Also remember that it is unlawful
to charge a pet deposit for service animals
or require certification or training for service
and support animals or to ask people to give details about their
actual or perceived disability or medical history.
So the questions that a co-op
or condo board needs to ask itself when it receives a request:
Would granting the request be too costly and an undue burden for management?
Would granting
the request put others in the community in any danger? These are balanced
against the right
of the person with a disability to
enjoy their home in the same manner as other residents.
If an association is found to have gave engaged in discriminatory conduct
based on its reliance on the perceived duty to abide by the terms
of their governing documents, the
association may be exposed to liability for the attorneys fees of the
plaintiff
in addition to its own legal costs and other penalties.
A finding of a violation of the Fair Housing Act does not require
a showing of discriminatory intent. This was established
through court cases in particular Trovato
v. the City of Manchester, New Hampshire.
The site on that is 992 f supp
493 New Hampshire 1997. An innocent attempt to enforce the covenants of an
association can
easily cause a board to place the association in harm's way.
Being found
violating the Fair Housing Act can be very costly, particularly for condominiums
and co-ops. Illegally
failing to provide a reasonable accommodation or modification.
For instance here are some examples of cases where
condos or co-ops have been sued and
been found liable. In 2004,
it cost the Glenview cue condo association $85,000
and they were required to allow
a resident using a wheelchair to enter the building at the main entrance
as opposed to a rear entrance which they have been requiring.
In 2012, a condominium association in Puerto Rico refused to repair
inoperative elevators in an eleven-floor building,
violating fair housing laws based on disability. Cost,
$1,000,000. Again discriminating
because you believe you have to abide by the terms governing
documents even if they violate the Fair Housing Act
can mean liability. In 2012,
a condo association was ordered to pay
damages and adopt a new policy that removes fees and insurance requirements
for service animals. Cost: $20,000.
In 2003, it cost
a Chilean property management company
in California $130,000
because they had prohibited children from playing the common areas
of a 56 unit townhouse complex.
Additional cases
include the Delray Beach condo association,
which in 2006 refused to allow
sale of a condo to a black family. That cost them $150,000.
And the Latvian tower condo association
had to comply with the consent order
costing them $128,000
where they attempted to prevent sales of a unit to a family with children.
That was in 2010. Additional questions and answers:
Can condominium associations
and cooperatives refuse to rent to people they
perceive to be immigrants? No,
everyone should be allowed to rent or own wherever they choose and
can afford to live. Denying housing to persons because of
their actual or perceived race or national origin
is illegal under the law. Fair housing laws cover
all persons regardless of their immigration status.
Can board members or management ban holiday
or religious symbols? No,
banning or requiring holiday or religious symbols
can be considered discrimination based on religion.
Religious proselytizing by board members
or management can be considered harassment. There
are exemptions
for certain kinds buildings. Senior housing; to qualify as senior housing the
housing must be intended
and operated for occupancy by at least one person 55 years
of age or older per unit and must have at least
80% of the units occupied by at least one person who is 55 years of age
or older
and establish and implement
age verification procedures. The other way to be classified a senior housing
is to restrict all persons in the building
to age 62 or older. Religious organizations and private clubs
are exempt. Owner occupied buildings with four units
or less, the so-called Mrs. Murphy exemption under the federal law
are exempt. Individuals who own three single-family homes or less
for rental at any one time
but only if the home is sold without sold or rented without the use of any
advertising
or real estate agents.
This is under the federal fair housing law. It's advisable for condominiums and
co-ops
to follow best practices of operating
their association so that they don't run afoul of fair housing laws.
Challenge stereotypes
and learn about fair housing laws, disability accessibility
and diversity through training for staff and board.
Promote integration and equal opportunity.
Have your policies and practices in writing
and apply them consistently to everyone who applies.
Notify all owners and renters
of the fair housing laws and work to report acts of discrimination.
Have clear written guidelines in place to respond to requests for reasonable
accommodations and modifications.
Always maintained detailed documentation of incidents that might result in a
complaint from a disgruntled
applicant, owner or renter. Be aware of
discriminatory statements and/or pictures when advertising
a unit. This means that if
you do intend to use human models
in your advertising use diverse
models as to race, family type, disability, et cetera.
Be careful about using statements
that would discourage certain categories of people from
applying. For instance, “perfect for couples”
might discourage a family from applying even if the unit were large enough
for a family. Have reasonable have an objective screening criteria
available in written format and keep records
of all applications and actions taken. Fair housing testing:
Testing is an approved
method all the way up to the Supreme Court actually for
enforcing fair housing laws and it can occur in the rental
real estate sales or lending markets. Without testing
housing discrimination often goes undetected.
It is used to obtain
evidence of any differential treatment based on an individual's
protected class status.
An organization conducting fair housing testing
typically set up volunteers with similar profiles
and housing needs but with different protected class statuses
such as race or disability.
The set of testers then
would apply for the same available housing unit
to see if they're treated differently because of their protected class
status.
Testing can occur on audit basis
where fair housing agencies routinely
test different entities within their service area.
Or it can be complaint based
where someone perceives that they may be discriminated against
and testing is one way to determine whether or not
discrimination was happening or whether it was just an
unfortunate that incident and not based on
illegal discrimination.
Other evidence that can be used as a source of discrimination
in a complaint; signs or ads,
written or oral statements, disparate
treatment such as a different down payment,
different application fee, written documents that reveal discrimination,
testimony of witnesses who have heard
improper statements that are of a discriminatory nature
and so forth.
Persons who wish to file a fair housing complaint
have either a year or two years after
the discriminatory conduct to file the complaint depending on what form
they use. Under the Federal Fair Housing Act
and the Illinois Human Rights Act,
the complaint must be filed within one year.
State court and US federal courts allow two years.
If a complaint is filed with an administrative agency
such as HUD or Illinois Department of Human Rights
the time that the complaint is at the administrative
agency is told for purposes of filing
in the US federal or state courts.
That means that time is not included in calculating
the two-year filing period. Chicago and Cook County
also have fair housing laws and accept complaints
within their jurisdictions.
What kind
relief is available? Make whole damages are available
under both the Federal Fair Housing Act and the Illinois Human Rights Act.
The federal Act also allows punitive damages,
while the Illinois Human Rights Act does not, but it does include civil penalties.
The federal act can also levy fines.
Both can provide injunctive relief.
And in the case of a complainant
who prevails, the guilty party
may be liable and most likely will be liable for their attorneys’ fees and
costs.
The Human Rights Act allows for civil penalties
of up to $10,000 to be awarded for a first offense.
At the second offense that goes up to $25,000
and the third offense up to $50,000.
Your housing
complaints can be filed both with HUD
in their Chicago regional office and with
IDHR also in the Chicago office. Both
of those entities will investigate a fair housing complaint
and make a decision whether or not they
believes there is enough cause to go forward with the hearing.
HUD has a toll free number at
800-6690-9777
and a TTY number at
800-927-9275.
Their webpage for further information
is at www.hud.gov.
The Illinois Department Human Rights
housing inquiries can go to phone number
312-814-6229.
They can be reached by e-mail at
IDHR.fairhousing@illinois.gov.
Their toll free number is
800-662-3942 their TTY number
is 866-740-3953
and their webpage
for additional information is at
www.illinois.gov/dhr.
This is one of a number
of trainings that are going to be available at this same site
and there are also a number of fair house agencies
funded by HUD that are also available for training and other information.
In preparation of this particular
training directed toward condominiums and co-ops,
we would like to give special thanks to Jeffrey L Taren
of Kinoy, Taren and Geraghty, P.C. Chicago
for sharing his ideas and training materials.
Thank you.