Discrimination | Rembaum's Association Roundup

June 12, 2025June 12, 2025

Accusations Of Racial Discrimination by the HOA

Admittedly there are always two sides to every story. This is why we have the American judicial system to get to the resolution of a matter as decided by the “trier of fact,” be it the judge or jury, after hearing from both the accuser and the accused (or in civil terms, hearing from the plaintiff and defendant). In most civil cases a plaintiff only needs to prove that a particular event was more likely than not to have occurred. This is referred to as a “preponderance of the evidence” standard of proof, meaning that a majority of the evidence favors the plaintiff’s position. But, before the parties can get to that stage, the plaintiff first must sufficiently allege a cause of action against the defendant. If not, then the plaintiff’s lawsuit is subject to being dismissed. Well, that is exactly what happened in the recent federal appellate case of Watts v. Joggers Run Property Owners Association, Inc., 133 F.4th 1032 (11th Cir. 2025), in which the plaintiff, Watts, appealed the dismissal of her case in its entirety by the lower court, the U.S. District Court for the Southern District of Florida.

In the underlying action, Watts alleged Joggers Run of taking unlawful actions against her, her family, and her guests due to their race and brought claims against Joggers Run under both the Fair Housing Act and the Civil Rights Act. Watts accused Joggers Run of selectively enforcing its rules pertaining to parking, pets, yard sales, and penalty fees against her and her family but not against non-Black residents. She accused the association’s president of referring to Black people as “monkeys” and another director of using derogatory, race-based comments. She alleged that she was limited to three minutes when addressing the board, but other non-Black owners were not so limited; and when she complained about this, somehow the board stripped her of her board membership without any notice to her. She alleged that the association denied her children use of the basketball courts because a director complained about there being noisy Black kids and “too many people of color” using the basketball courts. She alleged that the association accused her Black guest of trespassing and vandalizing cars. Other discriminatory practices were alleged in the lawsuit as well.

Joggers Run moved to dismiss the entire complaint for failure to raise any cognizable claim under both the Fair Housing Act and the Civil Rights Act. The lower district court granted that motion. While the lower court found that the alleged conduct of Joggers Run was reprehensible, it nevertheless ruled that none of Watts’s allegations could support her statutory claims and dismissed the lawsuit. Watts then appealed the dismissal to the U.S. Court of Appeals of the Eleventh Circuit, which ultimately reversed the lower court’s dismissal and remanded the parties back to the lower court for further
proceedings.

The standard of review employed by the Appellate Court is, in this instance, de novo, meaning the Appellate Court reviews the matter as if it were being considered for the first time, allowing for a new analysis of the facts and law involved. The Appellate Court noted that to withstand a motion to dismiss for failure to state a claim, the plaintiff’s complaint must include enough facts to state a claim for relief that is plausible on its face. The plaintiff must allege more than mere conclusions and formulaic recitations of the elements of a cause of action. But, however, in Fair Housing Act discrimination cases, the Appellate Court recognized that it can be difficult to define the precise formulation of a required prima facie case before the process of discovery has an opportunity to unearth all the relevant facts and evidence. That said, the allegations in the complaint should be judged by the required statutory elements.

The Appellate Court began its discussion with a brief history and the importance of the Fair Housing Act. As found by a bipartisan committee appointed by President Lyndon B. Johnson, national fair housing laws were necessary to end evident and profoundly divisive housing discrimination. In response, Congress passed the Fair Housing Act in 1968 to provide for fair housing within the United States; and in Sections 1981 and 1982 of the Civil Rights Act, Congress provided that all Americans, regardless of race, are entitled to equal contract and property rights.

While the Fair Housing Act makes it unlawful to discriminate against any person in the terms, conditions, or privileges of the sale or rental of a dwelling or in the provision of services or facilities in connection therewith because of race, color, religion, sex, familial status, or national origin, Congress did not provide a list as to what these “terms, conditions, and privileges” actually are. Later, through adoption of regulations by U.S. Department of Housing and Urban Development under the Fair Housing Act, we learn that access to communal spaces is within the scope of “terms, conditions, and privileges” of the sale or rental of a dwelling and that limiting the use of such privileges because of race would be a violation of the Fair Housing Act. In other words, when a person enters into an enforceable agreement for the purchase of property that includes a mandatory obligation to be a member of a homeowners’ association, then discrimination is prohibited as related to any of the privileges, services, and facilities afforded by membership in the homeowners’ association. The Appellate Court found that Watt’s complaint sufficiently alleged that she was denied equal access and treatment because of her race by Joggers Run.

In examining whether Watts had sufficient allegations to withstand the motion to dismiss regarding the Civil Rights Act, the Appellate Court found that it only needed to “initially identify an impaired contractual relationship under which Watts had rights.” The Appellate Court found, “The HOA rules created an enforceable contract that governed the residence rights and responsibilities and benefits of membership.” Because Watts alleged that the HOA violated its own rules and regulations by allowing non-Black residents to violate the rules and regulations while enforcing the rules and regulations against her and her family due to their race, Watts plausibly alleged that the contractual relationship was violated by Joggers Run in contravention of its own rules and regulations, which was sufficient to bring such a lawsuit. In fact, the United States Supreme Court broadly construes the Civil Rights Act to protect not merely the enforceability of property interest acquired by Black citizens but also their right to use property on an equal basis with White citizens.

Watts alleged that the Joggers Run created a dual property system where White owners could fully enjoy the amenities’ common areas and services while Watts, as a Black resident, could not. In conclusion the Appellate Court found that Watts’s complaint presented plausible claims for relief under the Fair Housing Act and under the relevant sections of the Civil Rights Act. Therefore, the case was reinstated and remanded back to the lower court for further proceedings.

Given that the facts of the case have yet to be tried in court, whether racial discrimination occurred against Watts remains to be heard and determined by the trier of fact. All that we know for the time being is that Watts has sufficiently stated her complaint to make a primary showing of discrimination, but whether it actually occurred or not will have to be decided later after all relevant evidence and testimony is reviewed by the trier of fact.

Reviewing the alleged facts in a light most favorable to and as presented by Watts, it certainly seems as though discrimination may have occurred. However, could Joggers Run have accomplished the car towing, the closing of the basketball court, and its other actions in a lawful, non-discriminatory manner? The short answer is, “likely so,” if it had equally enforced its rules and regulations against all owners and followed the required procedures. Had Joggers Run equally enforced its rules and regulations and followed the required procedures, then Watts’s claims could have failed.

Regardless of equal enforcement, making disparaging comments regarding any member’s race, color, religion, sex, familial status, or national origin is not only fundamentally wrong but also sets the stage for all the board members’ acts to be judged with those racially charged comments in mind. To make such comments as a board member could be, if proven true, fatal to the association’s position. Had the Joggers Run board members not made racially motivated comments, if it did as alleged by Watts, and had they engaged the association’s attorney to provide important and necessary guidance, then in all likelihood this entire fiasco could have been avoided.

March 1, 2021March 1, 2021

Selective Enforcement: A Grossly Misunderstood Concept

Without exception, the affirmative defense of “selective enforcement” is one of the most misunderstood concepts in the entire body of community association law. How often have you heard something like this: “The board has not enforced the fence height limitation, so it cannot enforce any other architectural rules”? Simply put, nothing could be further from the truth.

When a community association seeks to enforce its covenants and/or its board adopted rules and regulations, an owner can, under the right circumstances, assert an affirmative defense such as the affirmative defense of selective enforcement. An affirmative defense is a “yes I did it, but so what” type of defense. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of frauds, waiver, and more. However, it’s just not as simple as that. For example, a fence height limitation is a very different restriction than a required set back. Under most if not all circumstances, the failure to enforce a fence height requirement is very different from the failure to enforce a setback requirement. Ordinarily, the affirmative defense of selective enforcement will only apply if the violation or circumstances are comparable, such that one could reasonably rely upon the non-enforcement of a particular covenant, restriction, or rule with respect to their own conduct or action.

In the seminal case of Chattel Shipping and Investment Inc. v. Brickell Place Condominium Association Inc., 481 So.2d 29 (FLA. 3rd DCA 1986), 45 owners had improperly enclosed their balconies. Thereafter, the association informed all of the owners that it would thereafter take “no action with respect to existing enclosed balconies, but prohibit future balcony constructions and enforce the enclosure prohibition.” As you might have already predicted, nevertheless, thereafter an owner of a unit, Chattel Shipping, enclosed their unit; and the association secured a mandatory injunction in the trial court requiring the removal of the balcony enclosure erected without permission. The owner appealed. In the end, the appellate court disagreed with the owner who argued that the association decision to enforce the “no enclosure” requirement only on a prospective basis was both selective enforcement and arbitrary. The court held that the adoption and implementation of a uniform policy under which, for obvious reasons of practicality and economy, a given building restriction will be enforced only prospectively cannot be deemed “selective and arbitrary.”

In Laguna Tropical, A Condominium Association Inc. v. Barnave, 208 So. 3d 1262, (Fla. 3d DCA 2017), the court again used the purpose of the restriction in its determination of whether the association engaged in selective enforcement. In Laguna Tropical, a rule prohibited floor covering other than carpeting unless expressly permitted by the association. Additionally, the rule provided that owners must place padding between the flooring and the concrete slab so that the flooring would be adequately soundproof. In this case, an owner installed laminate flooring on her second floor unit and the neighbor below complained that the noise disturbed his occupancy. As a result of the complaint, the association demanded that the owner remove the laminate flooring. However, the owner argued selective enforcement because the association only enforced the carpeting restriction against the eleven exclusively upstairs units in the condominium. The court noted that the remaining units in the condominium were either downstairs units only, or were configured to include both first-floor and second-floor residential space within the same unit.

Again, the court looked to the purpose of the prohibition on floor coverings other than carpet and found that the prohibition was plainly intended to avoid noise complaints. Therefore, no selective enforcement was proven because no complaints were shown to have arisen regarding any units except the eleven exclusively upstairs units.

What about cats and dogs? In another case, Prisco v. Forest Villas Condominium Apartments Inc., 847 So. 2d 1012 (Fla. 4th DCA 2003), the Fourth District Court of Appeals heard an appeal alleging selective enforcement regarding the association’s pet restrictions. The association had a pet restriction which stated that other than fish and birds, “no pets whatsoever” shall be allowed. In this case, the association had allowed an owner to keep a cat in her unit, but refused to allow another owner to keep a dog. The association argued that there was a distinction between the dog and the cat. However, on appeal, the court found that the restriction was clear and unambiguous that all pets other than fish and birds were prohibited. Therefore, the court reasoned that the facts which make dogs different from cats did not matter because the clear purpose of the restriction was to prohibit all types of pets except fish and birds. In other words, the court held that the plain and obvious purpose of a restriction should govern any interpretation of whether the association engaged in selective enforcement.

If an association has a “no pets” rule and allows cats, must it allow dogs, too? There is a long line of arbitration cases that have distinguished dogs from cats and other pets for purposes of selective enforcement. For example, in Beachplace Association Inc. v. Hurwitz, Case no. 02-5940, a Department of Business and Professional Regulation Division of Florida Condominium Arbitration case, the arbitrator found, in response to an owner’s selective enforcement defense raised in response to the association’s demand for removal of a dog, that even though cats were allowed, that comparison of dogs to cats was not a comparative, like kind situation. Further the arbitrator found that cats and dogs had significant distinctions such as barking versus meowing, and therefore the owner’s attempted use of the selective enforcement argument failed.

But, in Hallmark of Hollywood Condominium Association Inc. v. Andrews, Case 2003-09-2380, another Department of Business and Professional Regulation Division of Florida Condominium Arbitration case, the learned arbitrator James Earl decided that because the association has a full blown “no pets of any kind” requirement and since cats were allowed, then dogs must be allowed, too. In other words, the defendant owner’s waiver defense worked. But, the arbitrator wisely noted in a footnote as follows: “The undersigned notes that there is a long line of arbitration cases that have distinguished dogs from cats and other pets for purposes of selective enforcement. However, the fourth district court of appeal has ruled that where the condominium documents contain particular language prohibiting all pets, any dissimilarity between dogs and cats is irrelevant and both must be considered. See Prisco.” The distinction between the two arbitration cases could be explained because of timing in that the 4th DCA’s decision in Prisco was not yet published when Hurwitz was decided.

From these important cases, it can be gleaned that

(i) even if an association has ignored a particular rule or covenant, that by giving written notice to the entire community that it will be enforced prospectively, the rule or covenant can be reinvigorated and becomes fully enforceable once again (though of course, prior non-conforming situations may have to be grandfathered depending on the situation),

(ii) if an association or an owner is seeking an estoppel affirmative defense, they must be sure all of the necessary elements are pled,

(iii) at times a court will look to the purpose of the rule itself where it makes sense to do so, and

(iv) dogs and cats are different, but they are both considered “pets.”

Remember to always discuss the complexities of re-enforcement of covenants and rules and regulations that were not enforced for some time with your association’s legal counsel in an effort to mitigate negative outcomes. The process (commonly referred to as “republication”) can restore the viability of a covenant or rule that may have been waived due to the lack of uniform and timely enforcement.

(Reprinted with permission from the March 2021 edition of the Florida Community Association Journal)

January 25, 2021January 25, 2021

Discriminatory Practices: Is Your Association Prepared?

On September 26, 2016, Rembaum’s Association Round Up published an extremely important article regarding a community association’s potential liability when allegations by one member accuse another member of a discriminatory practice. (Click HERE to view the 2016 article). On September 13, 2016, HUD made clear that a housing provider is responsible for discriminatory practices that may take place. In its Rules and Regulations set out in Chapter 24, Part 100 of the Code of Federal Regulations, effective which further interprets the Federal Fair Housing Act, HUD explained that it believes that, “we are long past the time when racial harassment is a tolerable price for integrated housing; a housing provider is responsible for maintaining its properties free from all discrimination prohibited by the Act.” Those regulations became effective on October 14, 2016.

In this author’s opinion, HUD went way too far by mandating that housing providers act as the investigator, police, judge and jury in cases of alleged discrimination. After all, there are countless Fair Housing offices in each state where complaints can be filed and are actively investigated, often times with only a bare inference. Community association board members are volunteers with no required special training other than to be “certified” within 90 days of taking office, which certification can be met by signing a one-page form acknowledging duties or taking a two-hour class. Neither the individual board members nor the community as a whole should have to bear liability for its board of directors not taking action in a neighbor to neighbor dispute. Afterall, the court room is the proper setting where such matters should be resolved.

In the January 25, 2021, edition of the Palm Beach Post reporter Mike Diamond Special to Palm Beach Post USA TODAY NETWORK, authored an article titled “Judge Won’t Dismiss HOA Religious Bias Suit.” In the article the judge was quoted as follows: ““the La-Grassos [the plaintiff’s] have plausibly alleged a claim against the association for its failure to respond to or seek to control Ms. Tannenholz’s allegedly discriminatory conduct.” Amongst other things, the allegation is that Tannenholz’s told La-Grassos, “you do not belong in a community that is 80% Jewish and that La-Grassos should “move the F… out and go to a white supremist community.”

But for HUD’s position that a housing provider can have liability for discriminatory practices of the residents it is unlikely the association would be a defendant in this lawsuit. By forcing housing providers, such as Florida’s countless condominium, homeowners’ and cooperative associations, to interject themselves into what should be private disputes amongst neighbors, HUD is providing the deepest of pockets to the plaintiff’s attorneys. At the end of the day, it is just another reason to sue the innocent community association to create liability where there should not be any in the first place.

Practical Tip no. 1: In light of this lurking danger, be sure to check in with your association’s insurance agent to be sure the association has proper liability coverage for accusations of discrimination.

Practical Tip no. 2: Also, given that there can even be personal liability in such actions, board members would be wise to speak to their own personal insurance agents too… Afterall you never know when that umbrella policy may come in handy. Remember this, too: if one board member has knowledge about an event, then such knowledge can be imputed to all board members as if they are all similarly aware. In other words, when one board member knows, then the association itself is on notice.

Practical Tip no. 3: Consider formally adopting a “no discrimination” type of rule. It could be as simple as “discrimination of any kind will not be tolerated”.

Practical Tip no. 4: If your association is made aware of an alleged discriminatory practice, then a written record of such allegation and the association’s efforts to remedy the situation should be made.

Be sure to discuss each and every alleged discriminatory practice brought to the attention of the board and/or its manager with the association’s attorney to obtain the proper guidance needed.