Within the past several years, we have seen more and more discrimination complaints being filed. These claims generally arise when the Board attempts to enforce the Rules and Regulations of the Association or collect delinquent assessments.
Under the law, residents residing in a Condominium, Townhome or Homeowner Association who believe that they have been treated unfairly due to race, color, handicap and/or sex, may file a complaint against the Association. There are several governmental agencies in the Chicagoland area which prosecute these complaints at no charge to the Complainant. It is not necessary for the resident making the complaint to prove that the Board members engaged in the discriminatory conduct. All the resident needs to do is allege the conduct and the agency will perform an investigation. Once this resident makes these allegations and a complaint is filed, the Board must defend the Association.
Although the Board cannot prevent a resident from filing such a complaint, the Board can help insure that the Association will be successful in defending the claim. We have defended a number of complaints and have found that the investigating agency wants to make certain that the Complainant has been treated equally. If the Association can show that the resident was treated equally and fairly regardless of race, religion, nationality, etc., the Association should be successful in defending this claim. Based on this, we recommend that the Board always engage in the following conduct when enforcing rules:
1. All complaints against a resident must be in writing and specifically set forth the type of violation. This complaint should be signed by the witness. Anonymous complaints should not be given much weight by the Board unless the facts surrounding the complaint are verified. Owners must understand that if they want the Board to act, they must step forward and state their claim.
2. Once the Board receives a complaint, a notice should be sent to the accused resident. This notice should state the violation and the Board’s determination. If it is only a warning letter, no hearing is required. However, if the Board plans on assessing a fine, the Board must provide the owner with notice of a hearing and an opportunity to be heard.
We recommend that the Board provide the accused with a hearing date, rather than requiring the owner to request a hearing. We believe this affords the accused greater due process.
3. After the Board makes a determination, notice of the Board’s decision must be sent to the accused. This notice should be sent regardless of whether the Board is assessing a fine.
4. Most important of all, all residents must be treated equally. Similar violations should have the same outcome.
If Board members are interested, we have prepared standard violations forms that can be used. We suggest that the Boards use these violation forms in each instance and keep these forms in the owner’s file to substantiate that the procedure has been followed on each occasion. By doing so, there is documentation that all residents accused of violations have been treated in a similar manner. The investigative agency will review these files to determine this. If you would like the complimentary forms, please contact our office.
Board members must be aware that there are strict penalties for discriminating against residents. Not only does the Association incur attorney’s fees and court costs to defend this claim, but the agency handling the matter or the Court may assess substantial penalties against the Association. These penalties could be thousands of dollars. As such, the Board must take all necessary precautions to avoid these claims.
Originally published in the Pioneer Press (September 2000).
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