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Discrimination

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WAIVING LATE FEES

Q. 
Our board of directors recently waived a late fee for a board member because "she puts in so much free time." Other members of the association are required to pay a late fee whenever they pay late, without exception. What are your comments?

A. 
I strongly recommend that the board cease the policy of waiving late fees for this or any other board member because such a policy creates a legal defense for other members of the association who pay late fees and get fined. If the board ignores my advice, at the very minimum, the board member who is receiving the special benefit should be recused from voting on such a waiver. Lastly, the receipt of such a benefit may have the legal effect of eliminating the board member's statutory protection because it can be argued that volunteers do not receive compensation, and that the waiver of a fee is in fact compensation. In short, it's asking for trouble to make exceptions such as the one described. Top


REASONABLE ACCOMODATIONS REQUIRED

Q. 
I am an elderly member of a condominium association and have trouble walking. My parking space is located quite far from my home which makes it very difficult for me, especially if I have to carry packages. There is a guest parking space next to my home. I have asked the board to allow me to use the space, but they have refused on the basis that it is to be used only for guests. Is there anything I can legally do?

A. 
Yes. The Federal Fair Housing Act (FHAA) ensures an equal opportunity for use of property by handicapped persons. To create an equal opportunity for use of property by handicapped persons, homeowner associations are required by law to make exceptions in the application and enforcement of rules, policies and procedures, including CC&Rs, to reasonably accommodate such persons.

The failure of a board of directors to provide reasonable accommodations to handicapped persons, when requested or needed, is considered a discriminatory act under the FHAA.

It would be reasonable for the board to assign the guest space to you. However, there may be other reasonable options available as well. Top


OBSOLETE RESTRICTIVE COVENANTS

Q. 
We live in a home located in a subdivision created in the 1940's. The CC&Rs include restrictions against selling to certain persons based on their religion. We know the restriction is unenforceable. Can we ignore it, or are we required to take some other action?

A. 
In 1948 this type of restriction became unenforceable. Until the end of 1999, no action was required. However, beginning January 1, 2000, a new law required that any CC&Rs or other governing documents that include a restrictive covenant in violation of the law must be amended, by action of the board of directors, to repeal such language. Further, any person may bring an action against the association for injunctive relief to require it to remove such a provision. In addition, a court may award attorney's fees to the prevailing party in such an action.

The law also provided that after January 1, 2001, the existence of such a restrictive covenant constitutes prohibited discrimination, regardless of whether the covenant is accompanied by a statement that it is repealed or void.

RULES CONCERNING CHILDREN

Q. 
Our homeowner association would like to adopt a rule prohibiting children from playing in the common area streets. The purpose of the rule would be to minimize the risk that a child will be injured. Can we legally adopt the proposed rule?

A. 
Assuming your association's governing documents do not prohibit the adoption of such a rule, your board of directors can adopt a rule that prohibits all people (not only children) from specified activities on defined portions of the common area of your association. By applying the rule to all persons, your board of directors will probably avoid the claim that your association is discriminating against children or families with children. Top






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