A recent survey conducted by Fortune Magazine revealed that 31% of Gen-Zers believe that violence to persons or property can be an appropriate way to bring about change. The survey also revealed that 55% of 18- to 34-year-olds believe that violence, property damage, and misinformation are appropriate ways to bring about change.
Managers and board members should be aware of the survey, in light of Gen-Zers and Millennials being among the 1,348,000 Pennsylvanians who live in more than 7,050 community associations. When owners or renters begin to distrust data and reliable information and resort to violence, property damage, and misinformation to bring about change, that can sow the seeds of a hostile environment within a community association.
The Department of Housing and Urban Development (HUD) defines “hostile environment harassment” as “unwelcome conduct that is sufficiently severe or pervasive” and interferes with the “availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction.” 24 C.F.R. § 100.600(a)(2) (emphases added). “Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists. Evidence of psychological or physical harm may, however, be relevant in determining whether a hostile environment existed and, if so, the amount of damages” owed. Id. at § 100.600(a)(2)(i)(B). “Harassment can be written, verbal, or other . . . and does not require physical contact.” Id. at § 100.600(b). “A single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is sufficiently severe to create a hostile environment.” Id. at § 100.600(c) (suggesting that multiple instances of harassment are not necessary to create a hostile environment).
The Third Circuit Court of Appeals, the federal appellate court that serves Pennsylvania, held that harassment that intrudes upon the well-being, tranquility, and privacy of the home is sufficiently severe. See Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96, 113 (3d Cir. 2017) (citation and internal quotation marks omitted). The Supreme Court of the United States has even taken the position that our “interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Carey v. Brown, 447 U.S. 455, 471 (1980) (emphases added).
There is no shortage of cases where a hostile environment existed in a community association because one owner or renter harassed another on the basis of race. For example, in Farrell v. Ashcombe Dover Homeowners Ass’n, the plaintiffs alleged that they were “subjected to racially abusive behavior from . . . neighbors.” Farrell v. Ashcombe Dover Homeowners Ass’n, No. 1:07-CV-2324, 2009 U.S. Dist. LEXIS 25405, at *3 (M.D. Pa. Mar. 26, 2009). Similarly, in Dorval v. Sapphire Vill. Condo. Ass’n, the plaintiff, a renter, alleged that his “neighbors began conspiring to harass and discriminate against him on the basis of his race a mere three days after his move-in.” Dorval v. Sapphire Vill. Condo. Ass’n, 694 F. App’x 89, 90 (3d Cir. 2017). The plaintiff also alleged that his condominium association (1) failed to enforce, and selectively enforced its By-laws and Rules and Regulations; and (2) allowed his neighbors to create a hostile environment to intimidate and drive him out of his home because he was Black. See id. Before the plaintiff filed suit, he sent more than 800 separate e-mails to his condominium association’s manager, putting the association on notice of the alleged harassment and discrimination. See id.
HUD recognizes that “a community association generally has the power to respond to [and correct] third-party harassment by imposing conditions authorized . . . by legal authority” (i.e., the Declaration, By-laws, and Rules and Regulations) and, therefore, should not be able to evade direct liability if it knew or should have known of discriminatory conduct. “Failing to take prompt action to correct . . . a discriminatory housing practice by a third-party, where the [community association] knew or should have known of the discriminatory conduct and had the power to correct it,” is grounds for direct liability. 24 C.F.R. § 100.7(a)(iii).
In Morris v. W. Hayden Ests. First Addition Homeowners Ass’n, a seminal case that has garnered national attention, the Ninth Circuit Court of Appeals held that a community association is not automatically directly liable for neighbor-on-neighbor harassment under the Fair Housing Act (FHA). See Morris v. W. Hayden Ests. First Addition Homeowners Ass’n, 104 F.4th 1128, 1148 (9th Cir. 2024). The plaintiffs, Jeremy and Kristy Morris, alleged that their community association bore some responsibility for religiously motivated harassment by their neighbors in connection with an outdoor Christmas event held by the plaintiffs, relying on Wetzel v. Glen St. Andrew Living Cmty., LLC. See id. at 1147. The Morris Court distinguished Wetzel, noting that, unlike a landlord, a community association cannot unilaterally evict or expel homeowners for mere “neighborly squabbles” and disputes. See id. at 1143, 1147-48.
The Morris Court found no evidence that the community association’s enforcement powers under its Covenants, Conditions, and Restrictions (CC&R) extended to policing the alleged religious discrimination directed toward the plaintiffs, volunteers, and visitors at the Christmas event. See id. at 1148. Without a clear CC&R violation and enforcement powers, a community association has no legal duty to intervene in neighbor-on-neighbor disputes. See id. In fact, a community association has the “power to enforce [only the] rules enumerated in the CC&Rs.” Id. (emphasis added). That is precisely why the Morris Court held that a community association’s direct “liability for third-party conduct under the FHA is fact-dependent” and remanded the case back to the district court. Id.
Intervening in neighbor-on-neighbor disputes can be a sensitive issue for community associations, and most owners or renters will not send managers and board members hundreds of separate e-mails, putting them on notice of potential hostile environment harassment. Managers and board members should diligently monitor correspondence from owners or renters because, if they are put on notice of even a single incident of potential hostile environment harassment, they should consider taking some action.
In addressing issues relating to hostile environments, managers and board members should also consider asking the following questions:
- Do we know about the alleged harassment? Should we have known about the alleged harassment? Knowledge matters.
- When did we first learn about the alleged harassment? Timing matters. Some action must be taken “promptly.”
- Is the alleged harassment based on race, color, religion, sex, familial status, national origin, or handicap? The foregoing are protected classes under the Fair Housing Act.
- What do our governing documents say? Do we have the power to respond to and correct the alleged harassment? If so, what can we do? What should we do? What action is appropriate is a fact-dependent inquiry.
Moreover, managers and board members should consult with and rely upon the advice of legal counsel. A community association lawyer can help managers and board members stay in compliance with HUD and mitigate direct liability by investigating incidents, issuing verbal or written warnings or demands, drafting cease and desist notices, conducting mediations or hearings, and imposing fines or sanctions. Such a practice would comport with the fiduciary duties owed by board members to the association under Pennsylvania’s Uniform Condominium Act and Uniform Planned Community Act, and if properly followed, mitigate the risks of liability for board members and their community association.
In conclusion, as more Gen-Zers and Millennials decide to own or rent in community associations, it would appear likely that community associations will need to actively address, and develop policies relating to, hostile environments. In any event, efforts made by a community association to preserve a sense of well-being, tranquility and privacy remain laudable goals and may enhance market values for homes within an association in today’s real estate marketplace.
