CAI-NJ June 2017

THE UNITED STATES FAIR HOUSING ACT: 12 General Rules to Help a Board Do the Right Thing

by its Disabled, and its Non-Disabled, Residents By David J. Byrne, Esquire Ansell, Grimm & Aaron, PC

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T he United States Fair Housing Act (“FHA”) is a remark- ably complex and fact-sensitive law, especially in regards to disabled residents of private communities. A board often has terrible difficulty understanding and planning for disabled residents, as the proper analysis and respect for a disability often defies general concepts such as consistent covenant enforcement, with an unequivocal focus on equal treatment of all residents. However, a board must handle those covenants and a disabled resident based on the precise facts of a particular circumstance. There are though, in my view, 12 concepts and/or rules that, if respected and applied, will greatly enhance a board’s ability to understand and comply with the FHA as it relates to its disabled and non-disabled residents. Background The 12 concepts and rules will only be useful to a board that has at least a base knowledge of the FHA. Briefly, the FHA makes it illegal to discriminate against disabled residents when providing services or facilities in connection with those services. As it regards disabled residents (FHA uses “handi- capped”, not “disabled”), this illegal discrimination is: (i) the refusal to permit, at the disabled resident’s expense, reason- able modifications to existing premises if such modifications may be necessary to afford the resident full enjoyment of the premises; or, (ii) the refusal to make reasonable accommoda- tion in rules, practices, policies and/or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling. The FHA

defines “handicap” as a (i) physical or mental impairment which substantially limits one or more of such person’s major life activities; (ii) a record of such an impairment; and/or, (iii) regarded as having such an impairment. The 12 Concepts and/or Rules 1. A disabled “resident” enjoys the FHA’s protections; not a disabled “guest” and not necessarily a disabled “owner”. FHA is focused on the person actually needing the equal use and enjoyment of the dwelling. 2. If a resident claims to be disabled, he probably is. “Handicap” is defined, and interpreted by courts, very, very broadly. 3. Discrimination is okay, normal and an essential aspect of life in a free society. A board should not be intimidated by a resident’s, or oth- erwise, use of the word “discrimination”. Humans discrimi- nate amongst things and people all of the time; in the things we buy, the people with whom we choose to associate, the TV shows we watch. It is not “discrimination” per se that is problematic. It is only those forms of “discrimination” made illegal by law or judicial decree that are of a concern. 4. All residents are created equal; but some residents are more equal than others. The paraphrased quote from Orwell’s Animal Farm is useful. Boards are always focused on their fiduciary duty to their members. Part of that focus is the importance of treating each person the same, without special treatment. The FHA, howev- CONT I NU E S ON PAGE 26

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