In May's issue of Condo Media Attorney Jeffrey Brown reviewed briefly a case from Florida that was discussed by the Attorney's Committee at its previous meeting.  The case, Martin v. Palm Beach Atlantic Ass'n, 696 So.2d 919 (Fla. App. 4 Dist. 1997) bears some closer scrutiny.

            The case involved a claim by a renter of a condominium unit that he had been discriminated against in housing as a result of having children.  As many will remember, in 1988 Congress amended the Fair Housing Act by adding to the list prohibited classes of discrimination (race, color, religion, sex and national origin) familial status, intending to prohibit discrimination against families with children (handicapped was also added as a protected class).  Exception was made for bona fide retirement communities which met specific criteria.  Many associations failed to meet these criteria notwithstanding that a subsequent amendment pushed through Congress by the AARP eliminated the most onerous requirement - the need for "significant facilities" for the elderly.  Palm Beach Atlantic was, apparently, one of those associations.  However, though it had undertaken the process of amending its rules and regulations, the existing rules contained an old provision which prohibited children under twelve.

            Mr. Martin, the tenant, rented his unit from a bank which had acquired title to the unit by foreclosure.  Thus, there had been no screening of him as a tenant, a common practice in Florida, and the association had not provided him with a set of its rules. However, someone anonymously slid a set of the rules under his door.  Apparently, according to Mr. Martin other acts occurred which made him feel unwelcome.  He received an anonymous note on his car telling him not to monopolize the parking.  His mother heard rumors of other residents blaming his children for damage to a door.  And management had registered several complaints with reference to his children playing unsupervised in the garage, on the roof and in the elevator.  Yet the property manager noted at trial that the reason for the complaints was the safety of the children and the potential liability of the association.  She also noted that the association was aware of the fact that its restriction against children was illegal and that, therefore, it wasn't enforcing it and was in the process of amending it.

            Upon these facts the trial court directed a verdict in favor of the association.  However, on appeal the Court ruled that while the plaintiff had failed to prove a case of actual discrimination, he had demonstrated a violation of subsection (c) of the Act which prohibits the making, printing or publishing of any notice, statement or advertisement with respect to housing that indicated a preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin.  Unfortunately, the association's rules still contained a prohibited limitation.  This amounted to a statutory violation, and it was unnecessary for the plaintiff to show any intent on the part of the association to discriminate.  The Court did note, however, that intent would be relevant on the issue of assessing damages. 

            Unfortunately, this ruling by the Florida Court does not appear aberrant.  Rather, it is consistent with a decision in a fairly similar case handled down by the Federal District Court for the Eastern District of Washington and another decision by the Federal Court of Appeals for the District of Columbia Circuit where a recorder of deeds was held to have violated the statute by recording deeds which incorporated racial restrictions. 

            Thus, associations must be concerned that the mere existence of a rule or restriction in their governing documents could subject the association to liability under the Fair Housing Act if that rule or restriction indicates a preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status or national origin.  Fortunately, as noted in the decision, the non-enforcement of such a clause will limit any damage award.  So, too, will ongoing efforts to amend out the offending clause.  Notwithstanding, the mere existence of such a clause opens the association to what can be a costly attack by a zealous resident and their attorney.  It would, therefore, be wise for most associations to have their documents, including their rules and regulations, examined by an experienced attorney to identify any provisions which might violate the Fair Housing Amendments Act and then proceed to amend out these offending provisions.