Has the HOA community association created a new vision for Fair Housing?

By Deborah Goonan, Independent American Communities

In past decade or so, real estate developers and investors started targeting private and common interest community housing to specific groups of buyers, based upon religious background. But, is it legal under U.S. Fair Housing Act of 1968?

The answer, it appears, is not obvious.

Joppatowne, MD lawsuits focus on alleged Muslim-only community

For example, in October of 2017, Faheem Younus, developer of River Run, made national headlines when a Maryland Realtor accused him of marketing townhouses in his 55 and older community to Muslims only. To be specific, real estate professional Gina Pimantel filed a legal complaint, alleging that more than a dozen River Run homes were sold to members of the Ahmadiyya Muslim sect.

Related: Is Joppatowne, MD, new home community violating Fair Housing Act?

Younus insists his townhouses are for sale to people of any religious faith, even though, so far, only Muslims have purchased the new homes. The developer sued Harford County in 2017, when officials withheld building permits, pending the outcome of a Fair Housing investigation.

More recently, in June of 2018, a U.S. District Court Judge ruled that Harford County officials must issue water, sewer, and occupancy permits to the 14 Muslim homeowners who have been waiting up to nine months to move into their new homes.

According to a report on CBS Baltimore, the Judge said that Harford County’s intent in not issuing permits was discriminatory.

WMAR ABC2 News in Baltimore reports that new construction at River Run is halted, pending the outcome of two lawsuits. The Baltimore Sun covered heated discussions at pubic hearings on the controversial new development in 2017.

According to Younus and its home builder Gemcraft, River Run is legally designated as a 55 and older community.

The 1995 Housing for Older Persons Act (HOPA) allows certain exceptions to the Fair Housing Acts, based upon age and familial status, for “senior” communities  — communities that limit residency primarily to adults age 55 and older.

In most instances, the amended Fair Housing Act prohibits a housing provider from refusing to rent or sell to families with children. However, some facilities may be designated as Housing for Older Persons (55 years of age). This type of housing, which meets the standards set forth in the Housing for Older Persons Act of 1995, may operate as “senior” housing. The Department of Housing and Urban Development (HUD) has published regulations and additional guidance detailing these statutory requirements.

However, here’s what the federal law says about restrictions based upon religious faith.

The [Fair Housing] Act does contain a limited exception that allows non-commercial housing operated by a religious organization to reserve such housing to persons of the same religion.

Source: U.S. Dept. of Justice , Civil Rights Division – Fair Housing Act

So, if the court determines River Run to be a non-commercial housing operation, it could legally entitle the village to restrict its housing to Muslims only. But if the court decides that new townhouse development is a commercial enterprise, River Run’s builders won’t be allowed to restrict residency on the basis of religious faith.



Catholic communities in the U.S.

It’s important that readers understand that other religious groups have been organizing and building private communities for decades.

A quick internet search for Catholic or Jewish housing communities turns up dozens of results across the U.S. Many, but not all, religious-based housing developments are retirement communities.

Our Sunday Visitor highlights several Catholic communities: Apartment Community of Our Lady of the Snows in Belleville, Illinois; St. Anne’s Retirement Community in Columbia, Pennsylvania; and Alexian Brothers Senior Ministries’ three retirement communities in Wisconsin, Tennessee and Missouri.

One of the largest Catholic Communities, Ave Maria, is located in Florida. The 720-home village was established by Tom Monaghan, founder of Dominos Pizza, in 2005. Governor Jeb Bush made Ave Marie the first official Stewardship Community District, a quasi-governmental organization controlled by property owners.

Ave Maria’s local restrictions require residents and business owners to comply with certain core aspects of the Catholic faith. For example, no one can purchase birth control within the town.

Notably, all of these communities are open to residents of all faiths, though the majority of owners and residents are members of the Catholic Church.



Orthodox Jewish community faces opposition amid corruption charges against developers

Meanwhile, in the rural Catskills of New York state, Hasidic Jews seek more affordable housing outside of urban neighborhoods of New York City.

Ready to meet that need, Hasidic developer Shalom Lamm set his sights on the small town of Bloomingburg, population around 400. According to a 2014 article in the New York Times, Lamm obtained approval of town council to develop a community of 396 townhouses. Although the new homes weren’t officially restricted to members of Hasidim, it was the obvious market segment that Lamm planned to serve.

Members of the small town filed complaints against Lamm at the time, alleging that he corrupted elections in Bloomingburg, getting allies elected to town council, who later approved his development plan for the private townhouse community.

Lamm pled guilty to conspiracy to corrupt the election process, in a White Plains Federal Court in 2017.

Another prominent private religious community is the post-World War II Orthodox Jewish enclave of Kiryas Joel. The private community now has more than 21,000 residents, most of them living simple lives on incomes below the poverty level.

On the other end of the spectrum, Hasidic Jews sued HOA board members of the upscale Highland Lake Estates, a Hudson Valley subdivision, in 2017. Some residents and home buyers allege that the HOA’s policies deliberately discriminate against Hasidic Jews. The HOA filed a countersuit in response, denying those allegations.

Related: $7.5 M HOA lawsuit in NY claims religious discrimination, Fair Housing violations

HOA board accused of religious discrimination files countersuit against Hasidic Jews (NY)


What’s the common thread?

One thing is clear. The majority of religious communities established in the past two decades are private, common interest communities or development districts, with or without homeowners associations (HOAs).

And, as is typical of common ownership developments, voting power in these religious-based communities is tied to property ownership rather than one equal vote for each adult.

So, even if these new private communities claim to be open to buyers and residents of all religious faiths, the vast majority of votes tend to fall to the dominant religious group. That arrangement ensures systemic discrimination toward the minority religious group in a common interest community.

It explains why some individuals are willing to tamper with the election process, within their communities or town governments. For some, it’s a matter of dominance. It’s about self-preservation of majority status.

Of course, such corrupt behavior is inexcusable. But it’s becoming more common.

It’s no wonder the U.S. is seeing an increase in community conflict between different religious groups, or between those who practice religion and those who do not.

Common ownership, ironically, tends to breed more division than unity. Majority ownership interest becomes the goal, because it equates to power.



Fair Housing Act turned on its head?

Another observation: The original intent of the Fair Housing Acts of 1968, 1974, and 1988 — to prohibit any kind of housing discrimination that would block residence or ownership based upon race, color, religion, sex, national origin, handicap and familial status — seems to be turned upside down.

Today it appears that anyone who objects to private groups organizing their own communities — be they apartment buildings, co-ops, townhouse or single family home communities, or even small towns — is discriminating against the right of groups of people to live among neighbors with similar values.

In other words, it’s becoming less socially acceptable to discriminate against private groups than it is to discriminate against one person who is in the minority within a group.

Rights of the majority trump the rights of the individual.

And, for roughly 50 years, that’s been the foundation of association-governed and common interest communities in the U.S.

Definitely something to think about.



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