Published on: July 20, 2018
In most cases the board of an association has the right to enact reasonable rules and regulations, regulating activity and the placement of objects in the common areas of the condominium. I say in “most cases,” because we have learned over time that there is an area where the board may want to avoid regulating and tread lightly in its application of rules, that being in the prohibition of the display of religious items and even in the prohibiting of religious activities in the common areas.
We often hear how the Federal Fair Housing Act (“the Act”) prohibit discrimination in housing by providing a mechanism to afford residents or potential residents of a condominium association to obtain a waiver of a no pet rule, allowing them to have an assistance animal. We also hear a lot about the Act prohibiting discrimination against families with children and rules that either indirectly or directly target children in a discriminatory fashion, such as “No children are allowed to play on the common grassy areas” or “Adult only swim times in the big pool are between the hours of 3 p.m. to 5 p.m.” Both are examples of rules that are deemed discrimination in housing under the Act.
The Federal Fair Housing Act of 1968 and the federal Fair Housing Act Amendments Act of 1988 prohibit discrimination on the basis of the following criteria (called “protected categories”): race or color; religion; national origin; familial status or age—includes families with children under the age of 18 and pregnant women; disability or handicap, or sex.
Another area where we have seen the protections of the Federal Fair Housing Act raised by residents of condominium associations is in the context of religion. For example there have been cases filed by residents when a condominium board prohibited Orthodox Jewish apartment owners from erecting a Succah on their balcony for the holiday of Succoth. This annual eight-day holiday usually occurs in October and commemorates the 40-year journey of the Israelites form Egypt to Israel which requires observers amount other things to sleep in a Succah, a three-sided hut-like structure with views open to the sky. The Greenbergs filed two separate lawsuits against the Board of Managers of Parkridge Condominiums. The first case Greenberg v. Board of Managers of Parkridge Condominiums was decided by the Supreme Court Queens County in 2002. The Court was not very sympathetic for the Greenbergs in their first case against the Association, applying the business judgment rule, the Court stated “so long as the board acts for the purposes of the entity, within the scope of its authority and in good faith,” the Court should defer to a board’s determination.
Further, because the Greenbergs wanted to put the Succah on common element the Court deferred to the Condominium’s governing documents and stated that board could prohibit them from placing it there. Finally, the Court states that the Greenbergs could satisfy their religious obligations by using a Succah erected by a religious institution or friends/relatives.
Some eight years later the Greenbergs sued again this time the board sought to prevent them from constructing a Succah on their balcony. The lower Court showed a trend toward recognizing religious freedoms, holding that the board exceeded its powers in attempting to prevent the building of a Succah on exclusive use common area.
Following the Court’s trend some State’s legislators have enacted specific laws proscribing bans on displays of religious objects. Illinois in 2007, Florida in 2008, Texas in 2011 and Connecticut in 2012. The laws in these States protect religious displays on an exterior door or door frame and were enacted in response to boards or managers directing residents to remove them after placed.
Another often cited case in the discussion of religious freedoms and associations was considered by the federal appeals court in the Seventh Circuit. The case Bloch v. Edward Frischholz and Shoreline Towers Condominium Associations, involved a dispute over a Unit Owners desire to display a mezuzah, a Jewish religious symbol on her doorpost. The association had a rule that prohibited the placement of “mats, boots, shoes, carts or objects of any sort” outside Owners’ doors. Eventually the board began using the rule to prohibit religious signs and symbols, including the Bloch’s mezuzah. Before the Bloch lawsuit commenced the association had adopted a religious exception to the hallway rule, but Bloch stilled sued for damages and emotional distress.
Bloch filed suit against the association claiming the rule violated the Federal Fair Housing Act by discriminating against Bloch based on her religion. The lower Court dismissed out the lawsuit saying that the rule was religion neutral, because it did not single out any one religion it was therefore not discriminatory. Bloch appealed to the Seventh Circuit. While some of Bloch’s arguments in the appeals Court case were dismissed as not covered by the Federal Fair Housing Act, i.e. constructive eviction, and failure to grant an accommodation, the Court ultimately ruled that the lower Court had erred in granting Summary Judgement for the association and ruled that Bloch had a right to a trial on the merits over whether the board in its application and enforcement of the rule discriminated against Bloch. Further enforcing the proposition that even a rule that appears neutral on its face can ultimately be deemed discriminatory if in its application it has a disparate impact on some residents based upon their religion or some other protected class.
Which brings us to a recent dispute occurring in Florida where a board at the Cambridge House Condominiums has allegedly enacted a rule banning “prayers, religious services, observances and meetings of any kind” from the common areas. The rule appears to be in response to an Owners’, husband and wife’s (Donna’s) use of the club house to conduct a sort of bible study. The couple had apparently invited a few friends and some other residents to join meet in the club house on Monday mornings.
The club house had served as social room for all residents and their guests for things such as card games, moving nights, game nights and parties. At some point a group of residents objected to the husband and wife’s use of the club house for religious purposes and demanded that the association put a stop to it.
Taking it a step further the association not only sent a letter to the husband and wife regarding their bible study group, but also banned the “decorative angel fountain in the courtyard,” a “memorial St. Francis statute,” another resident had put up in remembrance of a loved one. Finally, a sign was placed on the lobby organ declaring “ANY AND ALL CHRISTIAN MUSIC IS BANNED!”
It is no surprise that that the husband and wife Owners sought the help of attorneys to file a Fair Housing complaint with the Department of Housing and Urban Development. Apparently, the Association has rescinded the rule but continues its “indirect efforts to keep Donna’s Bible study out of the social room, while embracing a variety of similar secular uses.”
While as of the date of this article the case has not been ruled on or settled in this author’s opinion if the facts as reported are true the Association doesn’t have a leg to stand on. It would appear based upon the case law as developed over time an association may not directly or indirectly in its application of its rules and regulations prohibit religious activities, such as bible study groups in its club house, while allowing other non-religious gatherings of its residents and its guest. Like it or not, there are just some areas a board should not attempt to regulate and one of those is religion.
For any questions regarding this article, please contact Pam Jonah at firstname.lastname@example.org.