Condominium Boards and the Fair Housing Act

It is considered good business to thoroughly vet every potential owner who may wish to buy into your condominium or homeowner’s association. Criminal history, financial problems or other similar issues may lead you to decide not to rent to someone. However, if one investigates too far, or is too particular about the types of past problems that are deal-breakers, it can easily become discrimination in housing. You and your board must be able to balance both interests successfully.

The Fair Housing Act of 1968

Condos do fall under the aegis of the federal Fair Housing Act of 1968 (FHA), which mandates that anyone who rents or purchases a dwelling is entitled to be free of discrimination from sellers or landlords. However, many individuals misinterpret this as simply banning practices which are intentionally discriminatory. In reality, it also intends to curtail renting or selling practices that are neutral on their face, but discriminatory in practice. For example, a landlord may not outright refuse to rent to people of color, but in theory, nothing is stopping them from raising prices so high that many people of color cannot afford to rent from him. The FHA seeks to eliminate such practices.

It has been said that FHA enforcement has been inconsistent at the local level, but that does not, obviously, excuse local entities such as condo boards or homeowner’s associations from abiding by its tenets. If anything, it places more onus on these entities to abide by the law.

Criminal History Issues

This distinction between blatant discrimination and policies which are discriminatory in practice is an important one, especially in regard to the question of criminal history. While it is acceptable to inquire with regards to criminal history before renting or selling to a prospective buyer, one must remain aware of certain socio-economic factors – namely, that people of color represent almost two-thirds of U.S. prisoners, despite making up only one quarter of the country’s population. They are much more likely to have some type of criminal record than whites, due to failed ‘war on drugs’ policies, economic isolation of inner cities and non-white communities and a host of other systemic societal factors. While the percentage of violent offenders is more in line with estimates (namely, fewer of them are people of color simply because there are fewer people of color in the United States), the overall percentage of people with criminal records is significantly skewed on racial lines.

In other words, it is understandable if you as a board decline to rent to a person (regardless of race or ethnicity) if they have a criminal record that merits caution, such as one showing violence in recent years. However, the mere existence of a criminal record should not be a reason to refuse a renter, especially if they have not reoffended in years. Such a blanket refusal may indeed be held to be discriminatory, though if a suit were to be brought, the facts would obviously be heard on a case-by-case basis.

Seek Experienced Legal Assistance

The legitimate concerns of your community must be at the forefront of your mind, as a member of a condo board or homeowners’ association, but you must also ensure that you are not unfairly dismissing someone who has just as much right to housing and equal treatment as any other member of your association. In situations of doubt, it is often best to consult an experienced attorney. The Hollywood condominium law attorneys at the firm of Steven A. Mason, P.A. are happy to help answer questions and suggest the best course of action for your particular situation. Contact the Fort Lauderdale and Hollywood Law Offices of Steven A. Mason, P.A. for legal advice at 954-963-5900 or leave a message online.