HUD Says You Are Your Neighbor’s Keeper
By Wil Washington
Not so long ago, community associations safely viewed disputes between neighbors as neighbor-to-neighbor disputes that did not involve the association. Associations would typically direct the combatants to work it out among themselves. The disputes were rarely viewed as violations of the association’s covenants. Even if they were seen as such, given the difficulty in proving nuisances and the associated cost of prosecuting such claims, many associations did not see the effort as being worthwhile.
Associations are particularly ill-equipped to act as law enforcement officers. Accordingly, victims of bad neighbors were frequently on their own. Rules violation hearings over disputes between neighbors are often tedious, unseemly and difficult to officiate. In many cases it is difficult to determine who is to blame. For many years there was little for an association to fear from ignoring or shelving participation in neighbor-to-neighbor disputes. However, things are not what they used to be.
Most associations’ governing documents are drafted such that they contain clauses that provide that nuisances or unlawful conduct are prohibited. Most governing documents are also drafted such that they authorize the association, through its Board of Directors, to enforce the covenants through the levying of fines, charges, suspension of privileges and prosecution through the courts. Documents have traditionally been drafted to this way to enable an association to protect residents from obnoxious behavior in order to facilitate the peaceful enjoyment of their homes. However, over the years, in practice, many associations find the determination of what constitutes a nuisance too difficult to adjudicate and leave the disputing neighbors to sort out the problems between themselves or the police. However, when a person’s civil rights are involved, HUD believes associations should do more.
HUD recently decided to make it clear that community associations and management agents have an affirmative duty to protect residents from fair housing violations where they have authority to do so. 24 C.F.R. § 100.7 was added to make it clear that associations and managers are liable for their own discriminatory conduct as well as that of their employees, directors, committee members and agents even if they didn’t actually know about the unlawful discriminatory conduct. HUD’s regulations also explicitly make associations liable if they fail to take prompt action to correct and end discrimination by a third-party (i.e., a resident) where the association knew or should have known of the discrimination and had the power to correct it. HUD has therefore declared that if an association has authority to take action against a person who is engaged in unlawful discriminatory conduct under their governing documents or applicable laws governing the association, it has a duty to exercise that authority on behalf of the aggrieved resident. Failure to do so now formally constitutes a violation of that person’s civil rights under the Fair Housing Act. Moreover, landlords, community associations and their managers now have an affirmative duty to investigate civil rights violations within their purview to determine whether they need to engage on behalf of complainants rather than dismissing complaints as simple neighbor-to-neighbor disputes.
Although HUD has increased the exposure of landlords and community associations with 24 C.F.R. § 100.7, it has at least provided greater clarity concerning what constitutes actionable harassment and quid pro quo violations of the FHAA through 24 C.F.R. § 100.6. That regulation says that quid pro quo harassment refers to an unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to housing involving a protected class. Hostile housing environment harassment refers to unwelcome conduct that is sufficiently severe or pervasive as to interfere with housing involving a protected class.
The trend in fair housing law and the recent rules adopted by HUD make it clear that HUD intends for associations and their managers to take a more proactive role in protecting the civil rights of residents of their communities. Associations should know about the increased responsibilities imposed by HUD concerning neighbor-to-neighbor disputes and improper conduct by board and committee members, especially those involving protected classes.
Wil Washington is a principal and founding member the law firm of Chadwick, Washington, Moriarty, Elmore & Bunn, P.C. He is a past president of the Washington Metropolitan Chapter of the Community Associations Institute and a member of the College of Community Association Lawyers.