Housing counsel: Can condos bar people ‘living in sin?’

September 13, 2013

Can condominium associations ban people who are “living in sin”? That’s what the headlines called it when a Florida condo enacted rules prohibiting unmarried couples from buying units there.

In July, the Casa Di Amici Condominium Association amended its legal documents so that only a single person or a married couple could buy or lease a unit. The 160-unit association is located in Venice, Fla.

But the public backlash was so strong that at a special meeting last month, the association deleted the language.

Since the story broke, legal experts have been divided as to whether such a restriction is legal. Case law throughout the nation makes it clear that condominium owners are bound by an association’s rules and regulations, not only as they exist when owners take title but also by any validly enacted amendments.

The July amendment stated that the “sale, lease or transfer of a Condominium Unit may be made only to an individual [or] to a husband and wife jointly.” According to the document, the declaration was properly amended by the required supermajority of owners. Thus, condo lawyers have said that the new policy is binding.

Others have questioned whether it violates the federal Fair Housing Act, which, among other things, prohibits discrimination against a protected class of people on the basis of race, religion or national origin.

Are two unmarried buyers — even two brothers — such a protected class?

The general consensus is that they are not, despite the fact that in 1988, Congress expanded the act’s coverage to prohibit discrimination based on “familial status.”

However, this has been interpreted as referring to pregnant women or children under age 18 living in an apartment, not to unmarried couples.

Years ago, a landlord in New York refused to rent an apartment to a female lawyer. She filed a complaint of discrimination, claiming she was turned down because of her gender. The landlord said, “I am turning her down because she is an attorney and is a tenant activist and thus I did not want her in my building.” The court’s decision: Lawyers are not a protected class. The woman lost her case.

Some may assume that the Florida rule would clearly constitute discrimination against gays and lesbians, who fall in the protected class of “sexual orientation.” But does it?

While the clear inference is that the language was designed to keep such people out of the association, that is only an inference. Unless there is a court action challenging the amendment, and during the trial everyone testifies that “yes, that was our intention,” a court cannot rule on inferences alone. There must be clear facts on which to make a judgment.

Jonathan Levine, a community association attorney in Milwaukee, told me that “in court and elsewhere, I have long used the trope that communities have the right to define and organize themselves. For example, I have argued no-pet restrictions to judges with dogs, reminding them that the issue is what the community wants, not what you or I want. But I cannot remember ever using this argument to promote status discrimination.”

Nonetheless, sexual orientation and marital status are not protected classes under federal law.

If it is not a federal violation, does that mean it is legal?

That depends on local, state, county or even city law. According to my research, Venice recently enacted domestic registry laws giving long-term unmarried couples greater legal rights, but they relate to health-care issues and not housing.

California, by contrast, makes it unlawful for any owner of a housing accommodation to discriminate against any person because of the marital status of that person.

In a 1996 case decided by the California Supreme Court, a landlord argued that his refusal to rent was based on his assumptions about the applicants’ sexual conduct (which was not then related to a protected class) rather than their marital status. The court categorically rejected that argument, stating “a landlord cannot reasonably claim that he does not rent or show property to cohabitating couples based on their conduct (living together outside of marriage) and not their marital status when their marital status (unmarried) is what makes their conduct immoral in his opinion.”

Maryland’s Fair Housing Act specifically includes “marital status” as protected from discrimination. In the District, the Human Rights Act provides the same protection. There is no such provision in Virginia.

Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.

Comments
Show Comments
Most Read RealEstate