If you have not heard of a “group home,” chances are that you will at some time or another.
Simply stated, a “group home” is a living arrangement that serves the disabled by allowing them to live together, undergo therapy and simply provide support for one another (a group of unrelated, disabled, individuals living together in a dwelling).
The concern that frequently arises is that a “group home” is proposed either inside your HOA’s boundaries or right ‘next door.’ Without minimizing the importance and social need for group homes, the question that we hear quite frequently is “can we stop a group home” from coming into our neighborhood?”
CASE STUDY – WE WERE LUCKY: After advising a HOA client of ours about the legal issues involved, the HOA still wanted to challenge a group home from operating inside the HOA on the basis of it being a “commercial activity” which was prohibited by the CCRs.
The owners of the group home were represented by the Utah Disability Law Center and we took them to court to stop their “commercial” activities.
I knew we were on shaky ground, I had detailed discussions with the Board about my concerns, but the HOA wanted to raise some issues that did have merit and, in the end, we filed suit to stop the group home from operating.
The District Court, did rule that the group home was conducting a commercial activity in violation of the CCRs and required them to stop. Opposing counsel, when the ruling was announced, literally jumped out of his chair in disbelief and yelled “…but the Fair Housing Act, the Fair Housing Act!”
I too was surprised at the ruling, to be honest. I’ll explain why below – and I knew that if appealed, the ruling could very likely be overturned. It was not appealed, the group home was in financial distress (it turned out) and they sold the property and the issue was over. WE WERE LUCKY.
The Federal Fair Housing Act Amendments (1988) expanded protections to individuals with all types of disabilities which, in effect, made it unlawful to enforce a “prohibition” against group homes in HOAs. As you likely know from other Fair Housing issues you have dealt with, not every challenge, however, is a “disability” within the meaning of the Act.
If an owner of a proposed group home approaches your HOA, you can request documentation that verifies the existence of a disability related need for the home. If it is legitimate, your HOA is now subject to the Fair Housing Act (“FHA”) and will MOST LIKLEY be required to grant a reasonable accommodation deviating from your CCRs and allowing the home (please contact us for a detailed analysis if this issue arises).
PLEASE NOTE that note all alleged group homes are protected under the FHA.
The following are NOT considered disabilities under the FHA (pay special attention to the word “current” below):
- Current drug addicts (as opposed to recovering addicts);
- Current substance abusers;
- Current alcoholics;
- People with bad credit; and
- Sex offenders.
Please remember that standards and laws change, so the above is just a guide to encourage you to contact our office but the above categories of individuals are not deemed disabled under the FHA.
However, you can see that if the program offered by the group is NOT on the above list, then the group home will be exempt from your CCRs (“no commercial activity” restriction for example) and you will most likely be required to grant a REASONABLE ACCOMMODATION.
In my case, the District Court Judge took the plain meaning from the CCRs and said the group home was a commercial activity (for recovering addicts) and opposing counsel could not believe the ruling because the use of the home was not for one of the categories listed above. THE RULING MOST LIKLEY WOULD HAVE BEEN OVERTURNED IF APPEALED (there were many more facts involved and my point is simply to point out the risks of challenging a group home).
A reasonable accommodation for a group home does not mean that the home is permitted and thus ‘anything goes.’
There still cannot be unreasonable behavior, etc., but the point of this entry is to let you know that a group home in a HOA presents unique issues and implicates federal law – the Fair Housing Act and must be taken very seriously.
Be very careful when a group home is proposed in your community and contact our office immediately for a thorough discussion.
We hope that all of your HOAs have started off 2018 well. I appreciate all of our valuable clients and readers of this blog. Please contact us at any time with any issue or suggested topics to discuss. Please check our website for upcoming “HOA University” classes or call to get on our e-mail list. http://www.richardshoalaw.com
Thanks again to all of you – John Richards, Esq, CCAL 801-274-6800