By Melissa Bauman Ward, Esq.
WHEN IS A common area disturbance more than a passing nuisance? When a person who is mentally ill engages in harassing behavior toward others, thus elevating a simple argument into a fair housing claim. As with any situation where competing rights are involved, managing these situations requires a detailed analysis of what rights and obligations are in play and the best way to respond to the various needs while protecting the association from liability.
IS MENTAL ILLNESS A DISABILITY THAT REQUIRES REASONABLE ACCOMMODATION?
As a "housing provider" under fair housing laws, an HOA must provide reasonable accommodations to disabled persons. A mental illness or impairment constitutes a disability if the condition "substantially limits one or more major life activities (e.g., caring for oneself, speaking, learning, working); or the person has a record of such an impairment; or the person is regarded as having such an impairment.1 For our purposes, the covered disabilities include chronic mental illness, mental developmental challenges and alcoholism or past drug use.2 HOAs and other housing providers can only deny reasonable accommodation if it causes an undue financial or administrative burden.
In our experience, the types of reasonable accommodations required by persons with mental impairments are similar to those with physical disabilities. For example, a person with anxiety, depression, PTSD or the like must be allowed to use and keep a service or assistance animal without being charged a "pet deposit" and without regard to any pet restrictions in the governing documents. If a resident requires a caretaker, that caretaker must be allowed to work on the premises and possibly be granted a parking space. A person who suffered a severe brain injury and cannot read may need to be notified of important messages concerning their housing via telephone.
As always, note that the interaction between the various fair housing laws is complex and changing rapidly and the particular situation faced may not be straightforward. Immediately contact counsel for assistance when a request for a reasonable accommodation is made in order to protect the association and also ensure that proper accommodations are made to those residents who need them.
HARASSMENT AND FAIR HOUSING RULES
Federal and state fair housing laws apply to common interest developments (CIDs), but not always in the way you’d think. The Americans with Disabilities Act (ADA) generally does not apply to CIDs because they are not "public accommodations." However, the federal Fair Housing Act and California’s fair housing laws (the Fair Employment and Housing Act, Unruh Civil Rights Act and portions of the Davis-Stirling Act) definitely apply, with the effect of prohibiting discrimination against people who are members of protected classes.
For example, a housing provider (such as an HOA) cannot discriminate against someone who is disabled, which can include mental disabilities and people with mental illness. As discussed above, reasonable accommodation of those disabilities must be provided. What is more of a challenge is when it is not the association who is accused of harassing conduct, but is another owner, resident, guest or invitee (a "third party" in the parlance of the federal fair housing laws) who is also a disabled person.
Harassment is a form of discrimination, whether it is sexual harassment or harassment on the basis of race, national origin, etc. The federal Fair Housing Regulations require HOAs to "take prompt action to correct and end a discriminatory housing practice by a third party." This means that an HOA is legally obligated to "do something" when someone on the common area harasses another person in a manner which could trigger a discrimination claim. A heated argument on the common area which involves sexual harassment or discriminatory language is not just a neighbor-to-neighbor dispute and it is not a minor annoyance that can be disregarded. Instances of harassment must be taken seriously, regardless of who is involved, because an association can be liable for failing to take action if the HOA knew or should have known about the harassment and had the power to correct it.
The problem is that an HOA does not have the types of powers that can prevent future incidents of harassment, such a directly evicting an owner or resident. An HOA’s powers are generally limited to disciplinary consequences such as fines or reimbursement assessments (for property damage or legal fees to bring an owner into compliance with the governing documents). This means that it is essential for an association to avoid "doing nothing" and should instead do the following:
By taking decisive action in this manner, the board will have comported with its fiduciary duty to investigate claims and consult with experts in coming to supportable business decisions; will have acted promptly to end the harassment; and will have a strong defense to any claims brought against it by the victim of harassment because they "did something" that was appropriately within their power.
Is being mentally ill or having a mental impairment a defense to these harassment claims? The answer is "probably not." Associations must always regulate conduct, not status. It is not a violation of the rules to be mentally ill, an alcoholic, a drug addict or a person living with the effects of a traumatic brain injury (these are all examples of a "status"). It is, however, a violation to harass another person on the basis of their sex, race, national origin, etc. (these are all examples of "conduct").
If some reasonable accommodation could be made as a result of a person’s mental health status – e.g., no discipline for a person with Tourette’s Syndrome who briefly disrupts a board meeting by yelling obscenities; or by allowing an assistance animal in the pool area – then it should be made. However, it is not reasonable to completely excuse or waive the rules of the association because this would violate another’s rights. For example, a person cannot be allowed to damage property, threaten or harm other people, or sexually harass or discriminate against another on the basis of race due to their mental illness. These types of infractions cannot be "accommodated" by waiving the rules, and they should not be because they fall in the damage to property/danger or harm to self or others exception. Similarly, because an association has a legal obligation to take prompt action to "correct and end a discriminatory housing PM practice," including harassment, a mentally ill person who harasses another on the basis of the victim’s protected class must face the reasonable consequences of their violation of the association’s rules and of federal and state fair housing regulations.
Everyone wants to make sure that our communities are free of discrimination, including discrimination on the basis of a person’s disability or identification as a member of a protected class. There are times, however, when competing interests force association boards to be extra careful with regard to enforcement so that appropriate accommodations are made for those who need them while still preventing unlawful harassment in the community. Incidents such as the example of a mentally ill person harassing another person who is a member of a protected class on the common area are particularly challenging and should be approached with the assistance of counsel and careful application of the various civil rights laws involved.
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1 24 C.F.R. section 100.201.
2 Note that the Fair Housing Act does not protect current illegal drug users or anyone who poses a direct threat to the health and safety of others or causes substantial physical damage to the property.
3 Note that with the passage of SB323, effective January 1, 2020, members cannot lose the right to vote as a result of violating the rules of the community, regardless of the severity of the infraction or the consequences to the association of the person’s negative conduct.
Melissa Bauman Ward, Esq. is a principal with Hughes Gill Cochrane Tinetti, PC in Walnut Creek. Her practice consists entirely of counseling HOAs in all areas of their governance and transactions.