Written by Mike Ramsey.
Cultural clashes and potential fair housing disputes, including fights over the Confederate flag, are impacting the inclusive and supportive mission of communities.
Most community associations may never see a Confederate flag in their midst, but legal experts say it behooves all leaders to think preemptively about visual cues and behaviors – from overt to subtle – that could elicit anger or fear, especially from people in minority groups.
A major reason is relatively new guidance from the U.S. Department of Housing and Urban Development on fair housing that covers at least some community associations. HUD determined in 2016 that communities may become liable for discrimination in circumstances where they “knew or should have known of the discriminatory conduct and had the power to correct it” but failed to take prompt action.
“It’s really easier to say what you do permit, rather than try to list everything you prohibit,” says Donna DiMaggio Berger, a shareholder at Becker.
She recalls a recent dustup at a homeowners association where a resident began flying a “Trump 2020″ flag after the Nov. 3 election, which was not appreciated by some residents. The board subsequently adopted a restrictive flag policy but was obligated to grandfather in the Trump banner, the attorney says. Grandfathering covers the life of that one flag, Berger says. It is not a carve-out for an individual property.
“Grandfathering does not mean that particular unit or home can fly that flag forever. It means you get to fly the flag that was in place at the time your restriction was changed,” she says. “Once that flag becomes torn, tattered, and has to be replaced, you’re now bound by the same rule as everybody else.”
To read the full article in Common Ground, please click here.
Donna DiMaggio Berger is a Board Certified Specialist in condominium and planned development law, a shareholder at Becker & Poliakoff, and the executive director of the Community Association Leadership Lobby. To learn more about Donna, please click here.