Effective October 14, 2016, the U.S. Department of Housing and Urban Development (HUD) established regulations requiring all housing providers take steps to end harassment. The regulation includes homeowner associations as a housing provider. (Code of Fed. Reg. §100.7(a)(1)(iii).) No longer can boards tell feuding neighbors that the association will not get involved in neighbor-to-neighbor disputes. If one of them files a complaint with the association of harassment, the board must investigate and take appropriate action.
Factors to Evaluate. The alleged harassment must be related to a person’s membership in a protected class. If the harassment isn’t based on a protected class, then it may still qualify as harassment, but it’s not subject to the act’s requirements that an association intervene. To determine if harassment is taking place, boards can evaluate the nature of the unwelcome conduct, the context in which the incidents occur, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the people involved. It does not require that the complaining party suffer psychological or physical harm, only that the alleged harassment occurred.
Hearing & Corrective Action. If after investigating a claim the board determines that harassment is occurring, it can make a demand on the harassing party that he/she cease the harassment. If it continues, boards should hold hearings before taking corrective action such as sending a cease and desist letter, levying fines and suspension of privileges (as provided for in the governing documents), or taking legal action. If the board determines that an owner is a threat to the membership, it can take further action, such as seeking a restraining order.
Failure to Investigate. If a board fails to investigate and take appropriate action when it "knew or should have known" of the harassment, the person experiencing harassment can file a complaint with the U.S. Department of Housing and Urban Development (HUD). Once a complaint is lodged with HUD it normally refers the matter to California's Department of Fair Employment and Housing (DFEH) for investigation and possible action against the association.
DFEH Investigation. The DFEH is supposed to be neutral in its investigations. It has been our experience, however, that investigators working for the DFEH are more often than not advocates for the person filing a complaint and can be heavy-handed in its demands. If the investigator determines the allegations appear legitimate, the DFEH will serve a complaint on the association giving the board 30 days to respond. If the matter cannot be resolved to DFEH's satisfaction, the case is moved to its Legal Division. If the matter cannot be resolved at this stage, DFEH may file a lawsuit against the association.
Recommendation: Boards should work with legal counsel to adopt procedures for handling harassment claims in their associations. The policies should cover the reporting and investigation of alleged harassment as well as procedures for adopting findings and taking appropriate action.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.