By Greg Godkin, Roberts Markel Weinberg Butler Hailey, PC

Greg Godkin is a shareholder in the  Litigation section of Roberts Markel Weinberg Butler Hailey PC. His statewide  practice focuses on the representation of clients in the areas of complex  Business and Corporate Litigation, Directors and Officers Liability, Energy and  Maritime, Construction Law, Catastrophic Personal Injury and Complex Family Law  Matters. Mr. Godkin’s clients include some of the world’s largest banks, steel  companies, shipping companies, drilling companies and restaurant  groups. He has been listed on Thomson Reuters Super Lawyers "Texas Rising Star" Edition 2011 and holds  an AV rating from Martindale-Hubbell,  which is a testament that a lawyers peers rank him or her at the highest level of professional excellence.

Mr. Godkin’s clients entrust him to handle  matters of upmost importance, often times involving multi-million dollar  disputes.  He understands that every case  involves more than just money, but also the client’s reputation and  security.  This holistic approach has led  Mr. Godkin to serve as “outside” general counsel to a number of companies which  enables him to provide legal representation and counsel on an on-going basis so  as to best protect the company’s well being.

One of the most difficult challenges homeowner's associations and multifamily managers face is  enforcing a community's deed restrictions in a manner that does not violate the Fair Housing Act. On its face, this should not be difficult as most of us look at the act as prohibiting someone from being denied housing due to racial prejudice.  The law initially prohibited discrimination on the sale, rental, and financing of housing based on race, religion, national origin, or sex. The Act was amended in 1988 to  add protections for persons with disabilities and families with children. These changes significantly increased the number of persons afforded protection by the law and, as a result, opened the door to more claims of greater complexity, both legitimate and illegitimate.

Few people who are the subject of a Fair Housing Act discrimination claim set out to intentionally discriminate. This is certainly true of professional managers and homeowners associations. The typical case involves the enforcement of a deed restriction that is not, on its face, discriminatory. For example, if a homeowner's association has a restriction that prohibits horses and livestock and it learns that a resident is keeping a horse, the enforcement of the restriction would not be discriminatory. However, if it attempts to prohibit the resident from keeping the horse and, in response, the resident tells the association that he or she has a disability (the resident, not the horse) and that a request is made to waive the enforcement as an accommodation since the horse serves as a service animal, would the association’s continued enforcement run afoul of the Fair Housing Act thereby opening up the association to legal liability? The answer is of course “well, it depends”.

The first thing to determine is whether the individual who is requesting the accommodation has a handicap under the Act. Both the Texas and federal statutes define “handicap” the same: “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.” “Major life activities” means “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.”

The determination of whether a handicap exists becomes even more difficult in the situation where the handicap is not readily apparent, such as a mental or emotional impairment. However, it is a violation of the Act to just deny the accommodation outright because the impairment lacks transparency. There is a legal obligation on the part of the association or manager to investigate and verify the asserted handicap and how the requested accommodation is necessary.

Once the inquiry is made, it then becomes the obligation of the individual claiming the handicap to provide the requested information necessary to establish both the handicap and the necessity of the accommodation. If he or she fails to do so, there is no liability on the part of the association or manager for failing to allow for the accommodation.

Once the individual has provided the required information proving the existence of a handicap under the Act, it is unlawful to refuse to make reasonable accommodations in rules, policies, practices or services when such an accommodation may be necessary to afford the individual an equal opportunity to use and enjoy his or her dwelling unit, including public and common areas.

However, the law only requires “reasonable accommodations”. Ones that create an undue financial hardship, administrative burden, or a fundamental alteration in the nature of the program are not deemed reasonable. So in our particular example, if the person claiming a handicap provides a letter from his or her doctor establishing a mental or physical impairment substantially limiting a major life activity, and that the pony at issue would assist the individual in the use of his or her home and the common areas, it would probably be a violation of the Act not to grant a waiver of the restriction prohibiting horses. But what if the individual, in addition to a waiver, also asks for the removal of a fence so as to allow his or her horse access to the community gardens? Or that the association build a watering trough by the community basketball court so that the horse can have access to water when its owner is playing hoops? Are these requests reasonable? This is where the already difficult inquiry becomes even more difficult.

Unfortunately, there are no easy answers as each case is different. The best advice is to keep an open line of communication with the individual, and act in a reasonable manner at all times. If the line of communication breaks down or if the inquiries and decisions become too difficult, it is best to seek advice of counsel right away in an effort to avoid a violation of the Act which can lead to major fines and the assessment of attorney’s fees.

What about the case where someone is using the Act for financial gain? This is often seen in the  situation where an individual or company opens a “group home” for persons that have an alleged handicap falling within the purview of the Act.  There is nothing per se wrong with someone operating a for-profit group home; however, from a practical “real world” standpoint, most people that move into a single family deed restricted community do so with the expectation that someone is not going to open a group home next door housing sixteen unrelated, recovering heroin addicts. This is happening throughout the country, and when it does, one can imagine the uproar in the community when the residents are told that the Fair Housing Act trumps the deed restrictions.

I have represented an association with this scenario when an individual opened a group home in a neighborhood that has single family and no “for profit” restrictions. The owner claimed that the for-profit group home was protected by the Fair Housing Act and, as a result, was not subject to the restrictions as its residents were recovering from substance abuse. In that particular case, I was able to establish the home’s residents did not meet the definition of “handicap” because the owner was unable to establish the required elements under the Act, thereby allowing for the enforcement of the restrictions. So there are ways to defeat a Fair Housing Act claim under the right circumstances, depending on the facts of the particular case.

However, as demonstrated in this article, nothing about the Fair Housing Act is easy, and innocent enforcement can quickly turn into a violation of the Act. For that reason, should an association or manager find themselves presented with a requested accommodation or modification that creates uncertainty, seeking the advice of an attorney familiar with the Fair Housing Act and its requirements is paramount to avoiding what could be a serious financial liability.


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