Many people are generally familiar with the concept that housing providers, real estate agents, and property management companies are subject to state and federal fair housing laws. However, it is important to know that community associations are also subject to those laws. State fair housing laws vary from state to state. These laws typically set forth a statutory procedure for the resolution of complaints of violations of those laws.
This post will focus mainly on the Virginia Fair Housing Law (“VFHL”) (Virginia Code Section 36-96.1, et seq.) and the Virginia process for complaint resolution.
What VFHL Covers
Virginia has a stated policy to provide fair housing throughout the Commonwealth. Va. Code § 36-96.1. The VFHL prohibits covered persons or entities from engaging in unlawful discriminatory housing practices. Va. Code § 36-96.3.
Under the VFHL, it is an unlawful discriminatory housing practice for any entity or person to:
- Refuse to sell or rent after the making of a bona fide offer or refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, national origin, sex, elderliness, source of funds, familial status, sexual orientation, gender identity, or status as a veteran;
- Discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in the connection therewith to any person because of race, color, religion, national origin, sex, elderliness, source of funds, familial status, sexual orientation, gender identity, or status as a veteran;
- Make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination or an intention to make any such preference, limitation, or discrimination on the basis of race, color, religion, national origin, sex, elderliness, familial status, source of funds, sexual orientation, gender identity, status as a veteran, or disability. The use of words or symbols associated with a particular religion, national origin, sex, or race shall be prima facie evidence of an illegal preference under this chapter that shall not be overcome by a general disclaimer. However, reference alone to places of worship, including churches, synagogues, temples, or mosques, in any such notice, statement, or advertisement shall not be prima facie evidence of an illegal preference;
- Represent to any person because of race, color, religion, national origin, sex, elderliness, familial status, source of funds, sexual orientation, gender identity, status as a veteran, or disability that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available;
- Deny any person access to membership in or participation in any multiple listing service, real estate brokers’ organization, or other service, organization or facility relating to the business of selling or renting dwellings or discriminate against such person in the terms or conditions of such access, membership, or participation because of race, color, religion, national origin, sex, elderliness, familial status, source of funds, sexual orientation, gender identity, status as a veteran, or disability;
- Include in any transfer, sale, rental, or lease of housing any restrictive covenant that discriminates because of race, color, religion, national origin, sex, elderliness, familial status, source of funds, sexual orientation, gender identity, status as a veteran, or disability or for any person to honor or exercise, or attempt to honor or exercise, any such discriminatory covenant pertaining to housing;
- Induce or attempt to induce to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, national origin, sex, elderliness, familial status, source of funds, sexual orientation, gender identity, status as a veteran, or disability;
- Refuse to sell or rent, or refuse to negotiate for the sale or rental of, or otherwise discriminate or make unavailable or deny a dwelling because of a disability of (i) the buyer or renter; (ii) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (iii) any person associated with the buyer or renter; or
- Discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith because of a disability of (i) that person; (ii) a person residing in or intending to reside in that dwelling after it was so sold, rented, or made available; or (iii) any person associated with that buyer or renter.
Va. Code §§ 36-96.3(A)(1)-(9).
The VFHL also prohibits a covered person or entity from refusing to permit reasonable modifications of existing premises if such modification is necessary to permit a person full enjoyment of the premises. Va. Code § 36-96.3(B).
The VFHL is written broadly to cover a wide range of potential actions. Community associations can fall within the ambit of covered entities under the VFHL in a variety of ways, including through the provision of rules and regulations, their operation of common areas/elements, their operation of community association business, the handling of requests for reasonable modification, and even the contents of their governing documents.
VFHL Complaint Procedure
Under the VFHL, complainants may file a complaint within one year of the alleged discriminatory housing practice (either when it occurred or when it ended). Va. Code § 36-96.9(A).
Under the VFHL, the Real Estate Board and the Fair Housing Board (collectively, the “Board”) have the power to receive and initiate complaints, investigations, and attempted resolutions relating to the law.
Once the complaint is filed, the respondent (person or entity named in the complaint as having engaged in the unlawful discriminatory housing practice) may file an answer. Va. Code § 36-96.9(C). Complaints and answers are to be made in writing, under oath or affirmation. Such documents may also be reasonably amended during the process.
Once a complaint is filed, the Board must provide written notice to the respondent, within 10 days of the filing, identifying the alleged discriminatory practice, and advising the respondent of the procedural rights and obligations under the VFHL.
Upon filing, the Board conducts an investigation within 30 days of receiving the complaint. The investigation must be completed within 100 days unless it is impracticable to do so.
The Board is permitted to interview persons who may have relevant information and request copies of documents that may assist in the investigation. Interviews of witnesses and parties are made under oath. The Board also has subpoena power to compel witnesses to appear and testify and to produce relevant documents and records.
Upon completion of the investigation, the Board will prepare an investigative report summarizing the witnesses contacted, the reviewed records, and other information.
The Board then will issue a decision as to whether “reasonable cause” exists as to whether a discriminatory housing practice has occurred. If no reasonable cause is found, the Board shall then dismiss the complaint and notify the parties within 30 days of such determination. Any dismissals are made publicly known.
Throughout the process, conciliation is encouraged between the parties although it is voluntary. This is an agreement between the parties to mediate the dispute, subject to the approval by the Board.
Should “reasonable cause” be found, the Board is permitted to, via the state Attorney General, institute prompt judicial action, including seeking temporary or preliminary relief with a court. The Board is also empowered to refer the charge to the state Attorney General. Courts are empowered to award injunctive relief, civil penalties, compensatory damages, punitive damages, and attorney’s fees and costs for violations of the VFHL.
In addition, private persons may bring their own causes of action under the VFHL. Such a suit must be brought either (i) within two years of the incident or end of the alleged discriminatory housing practice, or (ii) within 180 days of the conclusion of the administrative process relating to the charge, whichever is later.
The VFHL does not require a private party to first initiate an administrative charge with the Board before filing suit. Courts are permitted to award compensatory damages, punitive damages, injunctive relief, and attorney’s fees and costs in such suits.
Conclusion
It is important for community associations to have a working knowledge of how the VFHL may impact them. All community associations should also develop a strategy on how to handle VFHL complaints. The VFHL is a complicated area of law. Accordingly, it is important to engage competent legal counsel to assist with such issues.