Fair Housing Regulations Are Here, and a New Protected Class

After five years of work and hearings, the California Fair Employment and Housing Council has completed what appear to be the first state Fair Housing regulations in the country. While in the short space of this column a thorough summary of the regulations is impossible, here are some highlights for associations and their managers to consider.

HOAs are “Housing Providers” under the regulations, as are HOA boards and their managers. Managers can also be subject to enforcement or civil liability if they discriminate or fail to respond appropriately to discrimination.

The regulations do not cover all fair housing issues but provide helpful guidance regarding the housing provider’s obligation to make reasonable accommodations upon request of the disabled. The regulations describe how disabilities are documented and who can attest to the need for an accommodation.

One such reasonable accommodation is allowing assistance animals. Under the regulations, a mere internet certificate or labeled vest is not acceptable to document the animal as an accommodation – a person attesting to a disability must be familiar with the resident’s needs. The regulations do not permit species or breed limitation for assistive animals. The test of “reasonableness” is whether the animal causes damage or danger to persons or property, and the mere fear or suspicion of problems is insufficient reason to deny the animal. A person needing an assistance animal cannot be required to obtain extra insurance or pay a fee or deposit for the assistance animal.

The regulations also ban harassment based upon membership in a protected class, meaning a resident may not be harassed because of their race, gender, religion, familial status, sexual orientation, or any of the other protected classes. If claimed harassment occurs, the HOA will be required to investigate the allegation and try to determine what happened. If the HOA has any power to stop or sanction the harassment, it is required to do so. Many associations do not have rules banning discriminatory harassment and may only be able to urge the offending resident to stop the conduct. One controversy in the HOA legal community regards whether HOAs should adopt rules against illegal harassment. Some lawyers urge that such rules should be adopted, but others (including this writer) argue that HOAs are not equipped to adjudicate harassment complaints between residents, and that such rules would add to the already difficult task of HOA management and governance.

Another important aspect of the regulations is the emphasis upon “interactive process,” as the HOA must dialogue with the resident seeking an accommodation. The interaction may result in a collaborative resolution meeting the resident’s needs. The HOA response to the request and dialogue with the resident may be scrutinized later if there is a complaint lodged against the HOA.

Confidentiality is another key new aspect of the regulations. The HOA must keep the resident’s disability and accommodation confidential. If the resident wishes to disclose that they have a disability requiring an accommodation, that is their decision and not the HOA’s.

Senate Bill 222 was approved, adding veteran or military status as a class of persons protected from housing discrimination. This new protection also means that the CC&R cover sheets required by Government Code 12956.1 must also mention this new protected class.

For more information, visit www.dfeh.ca.gov.

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.