by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

FAIR HOUSING; FAMILIAL STATUS; HANDICAPPED PERSON: Enforcement of a "single family only" covenant against a group care home for persons with AIDS violates the Fair Housing Act as enforcement would have a disparate impact on handicapped persons and would violate FHA prohibitions of refusal to make reasonable accommodation to afford handicapped persons equal opportunity to use and enjoy dwellings. Hill v. Community of Damien of Molokai 911 P.2d 861 (N.M. 1996).

Plaintiff purchased property for the use of a group home for individuals with AIDS. Defendants, neighbors who attempted to enjoin the use of the home for such purposes, cited a restrictive covenant allowing the property only to be used as a "single family" residence. The Supreme Court of New Mexico found that, as the covenant should be interpreted broadly, it was appropriate to deem the residents of the homes as a "family" and thus not in violation of the covenant.

The court went on, however, to correct a lower court ruling and note that if the covenant had been read to prohibit the proposed use, enforcement of the covenant would violate the FHA, not based on discriminatory intent, but based on the disparate impact that the covenant would have. The court held that the disparate impact would be to deny housing to those handicapped persons who were unable to live on their own, but only able to live in a group home situation. According to the court, this reading of the FHA furthered its design to help provide disabled individuals the opportunity to live in a traditional community setting by removing obstacles that hindered their quest for independent living.

Comment: As the editor has warned in the past, FHA cases are no laughing matter for homes associations. Attorney's fees and penalties and punitive damages are possible. Any association ought to be very, very cautious in taking any steps to enforce any use covenants against group care homes of any kind. Right now, this is national policy. If you don't like it, get political.

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