A first look at the Fair Housing Act
April 11, 2014
Let’s start looking at the Fair Housing Act, 42, U.S.C. § 3601, et seq. (the “Fair Housing Act”). The Fair Housing Act was promulgated with the intent to ensure that fair housing was provided throughout the United States within constitutional limitations. See 42 U.S.C. § 3601. The basic provision of the Fair Housing Act, and the topic of today’s post, that applies to homeowners and condominium owners association is 42 U.S.C. § 3604(b), which provides that it shall be unlawful:
To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
In the association world, much of this statute is inapplicable. For example, associations generally are not involved in renting or selling dwellings. The question then is whether the provision of certain common amenities arises to the provision of services or facilities contemplated by the statute. One might think this is an easy question. However, the statute is ambiguous. As written, it includes the word “therewith”. The relevant question in matters pertaining to 42 U.S.C. § 3604(b) is whether “therewith” constricts the reading of the statute by referring back to “the terms, conditions, or privileges of sale or rental of a dwelling” or should be more expansively read. In other words, is there a post-acquisition right under 42 U.S.C. § 3604(b)?
A narrow reading of the statute would exclude or limit a post-acquisition right because the anti-discrimination provisions of the statute are inextricably tied to the sale or rental of a dwelling. In other words, the statute is about initial access and not on-going enjoyment. An expansive reading of the statute would include a post-acquisition right. In such a case, the statute is intended to prevent discrimination in one’s enjoyment of one’s property.
Courts are split on this issue. While some courts have held that post-acquisition rights do exist under 42 U.S.C. § 3604(b), see, e.g., Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th Cir. 2009) (concerning the provision of emergency and municipal services), such cases do not involve condominium or homeowners association. Those cases that do address condominium and homeowners associations do not generally find a post-acquisition right under 42 U.S.C. § 3604(b) absent constructive eviction (though such cases may find discrimination under other statutes), see, e.g., Bloch v. Frischholz, 533 F.3d 562 (7th Cir. 2008); Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, 388 F.3d 327 (7th Cir. 2004). Finally, another court has suggested that there might be a very narrow post-acquisition right beyond mere constructive eviction, see, Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009) (a rehearing en banc of the earlier Bloch case).
Disagreements between federal courts are resolved by the U.S. Supreme Court. As yet, the Supreme Court has not weighed in on this matter.
From our perspective, associations should likely err conservatively and ensure that their actions cannot be viewed as discriminatory under the Fair Housing Act.
Tags: association, bylaws, CCRs, condominium, condominium association, Declaration of Covenants Conditions and Restrictions, Fair Housing Act, HOA, homeowner, homeowner association, homeowners, homeowners association, Tennessee, tn