In September 2016, the U.S. Department of Housing and Urban Development (“HUD”) released final regulations relating to housing discrimination, which now require community associations to investigate claims of harassment by one resident of another resident who is a member of a “protected class.” Under the Fair Housing Act, a protected class includes race, color, national origin, religion, sex, familial status and disability/handicap. In the past, if an association resident harassed another association resident, the association’s board or community manager may have viewed this as a personal issue, which would not be within the association’s scope of responsibility to investigate/address. This position was based on the belief that the association neither encouraged nor participated in the alleged harassing conduct and, therefore, could not be responsible for the conduct of its residents.
That theory no longer holds weight in light of the new HUD regulation, which places upon a community association the responsibility to investigate and address harassment of a protected class member by another resident. Failure to do so may result in a finding that the association’s failure to act has contributed to a harassing or hostile living environment and that allowing such an environment results in housing discrimination. The new rule indicates that if an association receives a written or verbal complaint of discrimination and the notice is “severe or pervasive enough to create a hostile environment” based on the “totality of the circumstances,” the association may have a duty to get involved. The “totality of the circumstances” takes into consideration such factors as: (1) the nature and context of the conduct; (2) the severity, scope, frequency, duration and location of the conduct; (3) the relationship of the persons involved; and (4) whether the conduct was sufficiently severe to create a hostile environment. Upon receipt of such a complaint, an association must now investigate all relevant housing-related harassment claims and take steps to stop the harassment. It must also follow up to make sure that the conduct does not continue.
Keep in mind that such claims are always fact sensitive and not all may not rise to the level of a housing-related dispute, which would not then warrant further involvement by the association. Any association or managing agent facing a claim by a resident that he or she is being harassed because of his or her status as a protected class member should contact association counsel for assistance in promptly addressing the situation.
You can review HUD’s new regulations by clicking here.
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