associaton matters

The Fair Housing Act & Condo Associations
Making Reasonable Accommodations In An Unreasonable World
By John Cottle
Editor’s Note: The following is a fun look at a very serious topic and in no way represents legal advice. Please contact an attorney with specific questions.

The Friendly Sands Condominium Association prides itself on going the extra mile to accommodate its members’ every need. Last week, however, was enough to challenge even the prodigious good will of the association’s affable manager, Patience Long.

First there was the problem with Dessi Bell, a long-termed resident of the condominium who had lately taken to playing her Rolling Stones CDs at such a volume as to cause multiple and increasingly angry complaints from her neighbors. When Patience confronted Dessi with charges of violating the condominium’s noise policy, Dessi claimed that because of her failing hearing, she could no longer enjoy her music at normal volumes. She demanded the association either grant her a special waiver from the noise restrictions or soundproof her unit. After muttering something about reasonable accommodations and calling her attorney, she bid Patience farewell and slammed the door in her face.

Next, there was Anita Lift, a wealthy octogenarian who showed up in the association office with a set of plans for a pool lift that she wanted installed, at her expense, next to the common pool. Patience dutifully reviewed the plans and told Anita that she would take the matter up with the board. Anita said that would be fine, but if the board declined, they’d better hire the best lawyer around because she would see them in court.

Patience left the office that Friday in a dither, only to catch the youthful Lane Blocker illegally parking his trendy convertible in a fire lane for the third time that month. Despite her best persuasive efforts, Lane refused to move his car, claiming that his trick knee had gone out again and reminding Patience that he had made three separate requests for a designated parking space next to his unit. If the association was going to ignore his reasonable requests, Lane reasoned, he was going to park wherever he pleased. With that, he gathered up his gym bag and tennis racquet and jogged off, leaving Patience to contemplate how she would deal with the sudden onset of acrimony that had infected her peaceful community.

Each of these scenarios potentially implicates the provisions of the Fair Housing Act, and the conflicts involved should not be taken lightly. The Fair Housing Act makes it unlawful to discriminate against anyone in connection with the sale or rental of housing. Condominium and homeowner associations are subject to the provisions of the act and can be held liable in damages if found guilty of discrimination. Discrimination under the act includes discrimination against persons with disabilities. Acts of discrimination include an association’s refusal to make reasonable accommodations that will mitigate the effects of the disability. Assigning designated parking spaces to persons with mobility limitations, or waiving a “no pets” rule to accommodate a blind person’s guide dog, are two classic examples of accommodations that the act requires an association to make. These are by no means the only types of accommodations required by the act, and each request for accommodations must be treated as a separate case and resolved on its own merits.

Fair Housing issues arising in the context of condominium and homeowner associations often pit the interests of the disabled person against the burden the requested accommodations impose on the other association members. Must, for example, all association members bear the cost of soundproofing a single unit to accommodate a resident who is hard of hearing and wants to play her music loud? How the association should weigh and decide between these competing interests is not always clear, and miscalculations can result in expensive litigation. 

When an owner decides to make a request for accommodations under the Fair Housing Act, he or she should first ask the association manager if there is a standard policy for dealing with such requests. Some associations have comprehensive written policies governing the application process, while others handle applications under a much less formal protocol. In making a request, the applicant should be prepared to give a clear statement of both the disability and the accommodation desired.

Once the disability and the requested accommodation have been clearly stated, the association board, or some designated committee, should immediately examine it and begin the process of addressing the request. Delays in taking action are not recommended, and depending on how far out the next regular board meeting is scheduled, the association may need to call a special meeting to deal with the request.

Once the request is before the board, the board should attempt to resolve three questions: (1) Does the applicant suffer from a disability?; (2) Is the requested accommodation related to the disability in such a way that granting it will enhance the applicant’s quality of life by mitigating the effects of the disability?; and (3) Is the requested accommodation reasonable? In the above examples, the board would be well within its rights to require Lane Blocker to provide independent evidence of his disability, as his “trick knee” is not readily apparent from his outward appearance. On the other hand, requiring a wheelchair bound applicant to document his or her disability with medical records could be viewed as an obstructionist tactic and is not advisable.

If the board determines that the applicant is disabled, it should next consider whether the requested accommodation would alleviate the disability. If the connection between the disability and the requested accommodation is not obvious—for example, an epileptic’s request for waiver of a “no pet” rule to allow for the keeping of a small “seizure alert” dog—the board is entitled to ask for information that will establish how the accommodation will alleviate the effects of the disability. It is the applicant’s responsibility to supply such information.

Finally, even if the board finds that the disability is legitimate and that the accommodation will enhance the applicant’s enjoyment of life, the request can be denied if it imposes an unreasonable burden on the association. If the applicant is willing to foot the bill for the expense of the accommodation, the association cannot claim financial hardship, although it may still deny the request if the accommodation results in a “fundamental alteration” of condominium property. Thus, Anita’s request for a pool lift to be installed at her expense would probably be deemed reasonable, and the association should grant the request. In the case of Dessi Bell, however, the request that the association bear the expense of the soundproofing would probably be deemed a financial hardship.

Fair Housing issues arise frequently in the context of condominium and homeowner associations. Owners and boards should cooperate in trying to resolve these disputes before they mushroom into litigation. The mishandling of these matters can cost associations and owners thousands of dollars in damage awards and litigation expenses.