Comply with Fair Housing Law When Managing Common Areas & Amenities
In August 2016, the NYC Commission on Human Rights entered into a settlement agreement with an owner for alleged age discrimination. A rent-stabilized tenant had filed a complaint against a large real estate management company because the company opened an exercise room in the building and allowed only market-rate tenants, and not rent-regulated tenants, to use the gym. The tenant claimed that the gym’s usage policy barring rent-regulated tenants had a disparate impact on older residents in the building.
The Commission’s Law Enforcement Bureau (LEB) conducted an investigation, including a review of the building’s and management company’s policies. The LEB found that the building’s denial of access to rent-regulated tenants was more likely than not to have a disparate impact on older residents in the building and issued a probable cause determination. The Commission and the owner entered into a conciliation agreement requiring the management company to charge the same reduced fee per month to all residents, whether market-rate or rent-regulated, for a period of five years; pay the complaining tenant $20,525 in compensatory damages; pay a sum of $40,000 to the City of New York; provide antidiscrimination training to all supervisory level personnel in the tenant’s building as well as all buildings managed by the company; update its employment policies and procedures to comply with the NYC Human Rights Law; display copies of the Commission’s “Fair Housing, It’s the Law” posters in prominent common areas at its places of business, and establish recordkeeping protocols on information regarding access to exercise rooms in other buildings managed by the company.
Beyond general access issues to your building’s amenities, there are fair housing compliance issues related to the operation and management of the leasing office, common areas, and amenities such as fitness centers and pools within your building. We will explain fair housing considerations affecting your leasing office, common areas, and amenities, and offer six rules to follow to avoid potential fair housing problems associated with managing those facilities.
Rule #1: Do Your Homework on Accessibility Requirements
Get to know the accessibility laws applicable to your building. In addition to learning about the design and construction requirements of the federal Fair Housing Act (FHA), it’s important to understand accessibility requirements under other federal, state, and local laws.
For example, the Americans with Disabilities Act (ADA) applies to your leasing office and any commercial enterprise such as a convenience store open to the public located within your building. However, common use areas that are for use only by residents and their guests are not covered by the ADA. And if the building receives federal financial assistance, it must comply with the accessibility requirements under Section 504 of the Rehabilitation Act of 1973. When more than one law applies to a community, and there are different accessibility standards for each law, the governing principle to follow is that the more stringent requirements of each law apply, according to HUD.
Anytime you’re considering renovations to common areas and amenities, the DOB will require that all new construction and alterations of public accommodations and commercial facilities in New York City subject to the ADA comply with the 2010 ADA Standards.
Rule #2: Ensure Access to Leasing Office
Accessibility issues are even more important when it comes to your leasing office. Because it serves the public, your leasing office is considered a public accommodation, so it’s covered under the ADA. So even if your community isn’t subject to the FHA’s design and construction standards because it was intended or built for first occupancy before March 13, 1991, the ADA would require you to remove architectural barriers if doing so is “readily achievable,” according to HUD.
Rule #3: Consider Reasonable Modification or Accommodation Requests
If you receive a request from a disabled resident to make any changes to your facilities or rules, take it seriously. Fair housing law requires buildings to make reasonable modifications—changes to existing structures—or reasonable accommodations—changes to rules—that are necessary to enable a person with a disability to have the same opportunity as everyone else to fully enjoy the building.
If a resident asks for an exception to your rules for a disability-related reason, treat it as a request for a reasonable accommodation. For example, you may receive a request from a resident with a disability who needs access to your fitness center an hour before or after its regular hours of operation. If there’s a disability-related need for the request—perhaps that’s the only time someone is available to help him follow doctor’s orders to use the treadmill—then you would have to look at whether the request to keep it open an extra hour before or after regular hours is unreasonable. Unless the request imposes an undue financial or administrative burden on you, or would fundamentally alter your operations, you are required to grant the request.
Complaints about access to common areas and amenities in your community deserve particular attention. For one thing, it could alert you to a possible violation of accessibility requirements under the FHA’s design requirements, the ADA, or state or local laws. In other words—it could put you on notice of a barrier that you may be legally responsible to remedy.
But even if it’s not required under accessibility standards, you may have to grant a request for a reasonable modification to allow access by a resident with a disability to common areas or amenities, such as the pool, fitness center, or community meeting room. If there’s a clear connection between the resident’s disability and the requested modification, then you must allow the resident to make the requested modification as long as it’s reasonable.
Rule #4: Ban Bad Behavior—Not Children
Buildings have a legitimate reason to adopt rules governing behavior in common areas and while using amenities. Such rules generally are necessary to prevent damage, protect safety, and minimize potential liability for injuries suffered by residents and guests using your facilities. And rules regulating conduct in the common areas within buildings are a legitimate way to prevent disturbances that interfere with residents’ quiet enjoyment of their apartments.
To address these concerns, it’s tempting to consider banning children from common areas or amenities. After all, it’s not unreasonable to believe that children may be particularly vulnerable to injury in recreational facilities or that loud play in hallways may disturb the neighbors.
Nevertheless, fair housing law protects familial status, so you may not adopt rules that unduly interfere with the ability of families with minor children to use and enjoy the community’s facilities. Just as the FHA prohibits you from steering families with minor children away from apartments on upper floors—where balconies pose safety risks for children—you can’t ban children from your pool or fitness center to ensure that they won’t get hurt.
It’s best to adopt rules that focus on dangerous or disruptive behavior in your common areas and facilities—instead of on the age of the person who engages in that behavior. On the other hand, your building may offer amenities where restricting access to children—or requiring adult supervision—is justified based on safety concerns. To satisfy fair housing law, however, you must ensure that the rules are reasonable—that is, based on objective criteria and tailored to the particular facility. Depending on the risk of injury, it may be reasonable to require adult supervision for anyone under a particular age in some areas—your pool, for example—but to deny access to anyone under a particular age in others—a sauna, for example—based on objective criteria, such as local health and safety laws or manufacturers’ instructions. In some cases, it may be an insurance issue—with restrictions imposed by the insurance company to maintain liability coverage for certain areas of the building.
Rule #5: Watch Your Language
Post signs in and around common areas and amenities to let everyone know your rules. But the language you use—on signs and in written rules—can make all the difference in warding off accusations of discrimination by families with minor children. Make sure that signs outlawing dangerous behavior in common areas apply to everyone, not just children.
As much as possible, avoid use of the word “children” in favor of generic terms like “anyone” or “person” under a particular age. And indicate the reason for the rule by using the key phrase “for your protection.” So, for example, a sign posted in your fitness center might read, “For your protection, persons under age 14 must be accompanied by an adult.”
Signs need to be clear, and visible to anyone in the vicinity. Make sure signs are posted low enough for someone in a wheelchair to read them. Be careful about putting signs on the backs of doors, where they can’t be seen when the door is open.
Rule #6: Be Consistent
Aside from disability-related requests, the key to preventing fair housing trouble is to ensure residents and guests have the same opportunity to use and enjoy your common areas and amenities regardless of race, color, religion/creed, age, national origin, alienage or citizenship status, gender (including sexual harassment), gender identity, sexual orientation, disability, pregnancy, marital status, and partnership status.
Generally, that means that you can’t exclude some residents from your pool, fitness center, or meeting rooms based on a protected characteristic. For example, if you allow a Bible study group to use your community meeting room for weekly meetings, then you could be accused of housing discrimination if you deny use of the room to another religious group.
Likewise, it’s unlawful to enforce rules more strictly on some residents than on others based on a protected characteristic. This may be a particular problem at pools, fitness centers, and other amenities, where you may have part-time or seasonal help. Without adequate training, these employees could trigger a fair housing complaint if it appears that they are singling out members of one protected class to punish for rules infractions, while ignoring violations by others.