Introduction to Fair Housing Litigation (Community Association Quarterly)

Community associations, through the board of directors, have a great deal of control over the provision of housing in their communities and the conditions and privileges associated therewith. Whether they are aware of it or not, the membership of the community entrusts an owner with significant power in electing them to the board. The directors establish the rules and regulations, and they manage and operate the amenities provided to their residents. In many cases they may also decide who can live in their communities, having been charged with the power to approve or deny prospective residents.

The board constantly faces the challenge of making tough decisions on the use and management of others' property. It is a thankless job. The decisions that the board makes in the day-to-day management of the community are often met with protest and resistance. This is especially true when the board makes decisions on use of property, when they issue a notice of violation of covenants and restrictions, when the board disapproves an application for property transfer or lease, or when the board develops its budget and decides to spend or not to spend the community's money on projects that impact use and enjoyment of the property.

While the Association's governing documents and Florida Statutes provide procedural guidance, they do

not define what is best for any given community, and they do not instruct the board on how best to effectuate the majority's views for the management of the property. The members of the board are faced with the responsibility of promoting the health, safety and prosperity of their communities, which they may define in vastly different ways depending on their personal inclinations and life views. Of course, the individual members of the board step into their role with all of their personality, education, past experiences, biases and prejudices, whether good or bad.

Unfortunately, while we have enjoyed the benefit of almost 150 years of fair housing laws since Congress enacted the Civil Rights Act of 1866, discrimination in housing is still a very real and prevalent social ill. Clearly, if the board's actions are based on personal bias against a resident, or discriminatory animus against the class of protected persons to which the resident or prospective resident belongs, those actions are in violation of either state or federal law. The board is prohibited by state law from selective enforcement of the community association's covenants and restrictions and the board is prohibited by both state and federal law from enforcing those restrictions in a way that discriminates on the basis of race, color, national origin, sex, handicap, familial status, or religion. Even if the members of the board harbor no ill-will toward any particular protected class-even if they have no intent to discriminate-they cannot take any action that has a discriminatory effect on members of a protected group. In addition, the board is bound by law to make reasonable accommodations for handicapped persons so that no matter their disability they are given the same opportunity to enjoy the community as everyone else.

While federal and state law prohibits

discrimination in housing, it does not impose a code of civility. It does not guarantee fairness and it does not prevent difficult, harsh decisions made in the best interests of a community, or even foolish and capricious decisions made to satisfy the whims of the board of directors. Even if the board's motivations are non-discriminatory, given the nature of the board's responsibility in enforcing the community association's governing documents-their burden of managing and often restricting use of another's real property-it is only natural that residents and prospective residents often react by taking offense and assuming that they are being targeted unfairly. When the board reaches out to an owner or resident and criticizes their use of their own property, or when a board's decision is the only thing standing in between a prospective resident and their home of choice, it often and literally hits too close to home. The individual often fails or refuses to see any legitimacy in the board's decisions, which may quickly evolve into a false perception that they are being targeted unfairly. Ultimately, they may form a sincere belief that they are being targeted because of animus toward their protected class.

Unfortunately, whether the alleged housing discrimination is bona fide or altogether false is all too often a decision that will ultimately be decided by the court. In light of these considerations, this newsletter will serve as a short guide to fair housing litigation and will discuss growing trends in this area of the law that are particularly relevant to Florida community associations.