HUD “Quid Pro Quo” rule clarifies HOA duty to stop discrimination among residents

By Deborah Goonan, Independent American Communities

 

Earlier this year I told you about a proposed HUD rule to put an end to discrimination in Association Governed Housing. The rule is now effective, and was recently recorded in the Federal Register (see reference below).

The following article from the LA Times provides one example of how housing providers would be expected to deal with discriminatory harassment between residents. In this case, a tenant in an apartment community is the target of hate speech and vandalism to her car. But when she complains to the manager, she is told to “work it out” with her neighbor on her own.

However, under the new rule, these kinds of complaints can no longer be ignored by leaders of HOAs. Read on…

 

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Can a tenant’s ethnic slurs amount to housing discrimination?

http://www.latimes.com/business/la-fi-rentwatch-discrimination-20161105-story.html

Although the example above involves tenants, the situation could easily apply to two residents of a homeowners, condominium, or cooperative association, whether they own or rent housing. If a community manager or Association board stands on the sidelines and does nothing, the Association faces liability in the event of a Fair Housing lawsuit. And, by the way, HOA insurance policies tend to exclude coverage when the Association is on the losing side of a Fair Housing claim.

 

What the opponents say about HUD’s new rule

Now that the rule is clarified, I will share with you a few of the comments made by some Real Estate / HOA industry professionals this summer, when I posted an article on the then-pending rule on a public internet forum:

 

HUD has no basis or reason to get involved here, another example of Government over-reach. Be careful what you wish for, HOA’s will die financially and then NO ONE will be enforcing the covenants and restrictions of the community… want chaos? That is the unintended consequence of this over-reach by HUD. – a Reverse Mortgage Specialist, Finance of America Reverse – A Blackstone Company

Ridiculous. Apparently HUD doesn’t realize this is what laws, including ADA, and the police are for. Now that HOA boards are expected to administer the nanny state’s edicts, will they be expected to wipe a resident’s nose after she sneezes, or carry in her groceries, too? – a Real Estate investor and speculator

This interpretation by HUD of the Fair Housing Act is a massive overreach that adds to their already extensive interpretation of a fundamentally simple law. As a rational and practical matter, an HOA cannot be responsible for neighbor-to-neighbor relations. An obvious barrier is that an HOA typically has no power to regulate conduct by individuals within the community that may be in violation of the FHA. I suspect this is an attempt by HUD to transfer the enforcement burden to HOAs, just as municipalities have transferred the burden for maintaining basic infrastructure to HOAs. – a certified Community Association Manager, member of CAI state chapter

 

Ah, don’t you just love the irony in these comments?

First of all, the revised “Quid Pro Quo” rule only requires intervention in disputes related to fair housing violations directed at a protected class –  race, color, national origin, religion, sex, disability and the presence of children (familial status). The Association is not expected to intervene in each and every neighbor to neighbor dispute.

The Association-Governed Housing industry preaches that it is the duty of the HOA board or manager to strictly enforce aesthetic standards. Typically this is accomplished by walking the building or driving a golf cart around the community with clipboard and camera in hand, in search of unapproved window coverings, flags that are too large, campaign signs that don’t meet strict size requirements, grass that is too long/brown/has a few weeds in it. You know, all that vitally important stuff that might harm property values.

So why can’t HOA Boards and Managers prioritize their duties to more important matters, such as acknowledging discrimination, as well as enforcing sanctions against disruptive or abusive residents that cause a nuisance or potential danger?

I guess it’s much easier – and potentially more lucrative – to enforce rules and restrictions over petty issues than serious threats to health, safety, and well-being.

Thankfully, there are many other professionals that agree HUD’s new anti-discrimination policy is long overdue.

 

Reference:

HUD Final Rule clarifying the responsibility of Association Governed Housing Communities to take action to curtail discrimination:

Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act


8 thoughts on “HUD “Quid Pro Quo” rule clarifies HOA duty to stop discrimination among residents

  1. Rules/interpretations like these are exactly the types of regulations that need to be rolled back under the new administration. Government interference in our daily lives has gone too far

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  2. Let’s take that logic a bit further. I agree, there’s too much government interference in our daily lives, and it starts with Association Governed Residential Communities. No entity interferes or regulates individual lives more than a homeowners, condo, or cooperative association! Let’s substantially roll back regulation OF owners and residents BY Associations to the bare minimum of necessary covenants, restrictions and rules.

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    1. Agree, completely. It seems that HOA’s have morphed into some totalitarian monster using their own version of regulatory doctrine. I live in a community within a community, with each having their own covenants. Can get confusing but it gets complicated because it appears that some of the officers have determined that they have powers beyond the scope of the stated rules. Example: The President of the larger HOA was discovered to be negotiating with a nearby town regarding them annexing us. Totally unacceptable and it created a confrontation (in which I prevailed) But shows the arrogance that is at work in the HOA’s

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  3. I believe in HOA’S but they’re like anything else in life meaning not everyone should have power positions . You may love the law but you don’t qualify to be a cop or judge and just because you’re a likeable individual having many degrees doesn’t mean getting along with other people in close settings will be healthy for either of you .

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  4. So the Board of a small HOA single- family -dwelling community is supposed to become the enforcement body for alleged discrimination cases between members or face being sued by the party alleging discrimination? Is the Board supposed to secretly spy on, electronically surveil the members ( Big Brother Board) to gather evidence of discrimination,,file the lawsuit, pay for prosecution of the alleged criminal in court and then incarcerate or heavily fine the person or persons found guilty? Are we also required to award the alleged victim a large settlement for their alleged suffering?

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    1. I believe you misunderstand the intent and the scope of HUD’s rule with regard to quid pro quo and hostile environment discrimination in a housing setting.

      According to the actual rule published in October 2016, an HOA board would not be required to “spy on” residents, but rather, to reasonably respond to discriminatory actions or complaints that are brought to their attention, to the extent that they are able.

      The HOA is not expected to investigate and prosecute allegations of discrimination or harassment, but would be expected to cooperate with HUD investigations as appicable.

      HOA intervention might consist of written warnings to the offending resident, with an explanation of their inappropriate behavior and how it violates the Fair Housing Act. It might entail contacting law enforcement authorities if harassment rises to the level of a public disturbance, vandalism, credible threats, or assault.

      The final rule is detailed here: https://www.federalregister.gov/documents/2016/09/14/2016-21868/quid-pro-quo-and-hostile-environment-harassment-and-liability-for-discriminatory-housing-practices

      An association board would be wise to consult its attorney on any and all matters related to the Fair Housing Act.

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