There is a common misconception that community associations, which include homeowners associations and condominium associations are not required to “make accommodations” for disabled individuals. While it is true that the Americans with Disabilities Act (“ADA”) may not be applicable to community associations unless, for example, the facilities of the applicable association are open to the general public, the Federal Fair Housing Act (“FHA”), and the Maryland equivalent (codified in Subtitle 7, Title 20 of the State Government Article of the Annotated Code of Maryland) impose requirements on community associations relating to reasonable accommodations and reasonable modifications. This blog post will focus on the obligations of community associations pursuant to the FHA. To the extent you may have questions regarding the ADA and requirements of “public accommodations”, please contact one of our attorneys in our real estate department.
The Federal Fair Housing Act, codified in 42 U.S.C. 3601 et seq., provides that, with respect to a person with a physical or mental impairment which substantially limits one or more of such person’s major life activities, it is illegal to discriminate against any such person in the provision of services or facilities in connection with the use and occupancy by such individual of a dwelling. According to the Department of Justice, the term “major life activity” may include seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, speaking, or working. In addition, other sources have defined “physical or mental impairment” as including any physiological disorder or condition affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic, skin; and endocrine.
“Discrimination” includes, without limitation, a refusal (a) to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied (or to be occupied) by such person if such modifications may be necessary to afford such person full enjoyment of the premises; and/or (b) to make a reasonable accommodation in rules, policies or practices when such accommodation may be necessary to afford such person equal opportunity to use and enjoy the dwelling in question. What does this mean in practice?
Practical Example 1 – Reasonable Accommodation.
John Doe is the owner of a dwelling in a homeowners association. The declaration of covenants, conditions and restrictions of the homeowners association prohibit the installation and use of generators. Mr. Doe suffers from a medical condition which may cause him to stop breathing while he sleeps if does not use an electric-powered medical device while he is sleeping. If the power to his home is off, such circumstance potentially poses a threat to the health of Mr. Doe. Mr. Doe submits an application for the installation and use of a generator for his home, along with documentation confirming his medical condition from his treating physician. Is the homeowners association required to grant approval for the generator?
The short answer? Yes, but may do so with some reasonable conditions/restrictions. The FHA (and Maryland’s equivalent), trumps the provisions of the homeowners association’s declaration. Accordingly, to the extent Mr. Doe is a resident of the dwelling, suffers from a physical impairment which substantially limits a major life activity (which based on the foregoing, he does), and requires the generator in order to fully use and enjoy his home (he does), then the association must grant him approval for the installation of the generator. The association may impose some conditions on such approval including, without limitation, requiring that the generator (1) be screened from view from the streets, other lots and the common areas of the association, and (2) be removed from the property once Mr. Doe no longer occupies the home as his principal residence. The approval with conditions letter should indicate that notwithstanding the prohibition on generators set forth in the association’s declaration, that the request is being approved pursuant to the FHA.
Practical Example 2 – Reasonable Modification/Reasonable Accommodation.
Jane Doe is an owner of a unit in a condominium association. Jane’s minor son, Jim, resides with her. Jane contacts the management company for the condominium association, requesting that a handicap accessible parking space be installed within the parking areas of the condominium. The parking areas of the condominium are general common elements. Jane has valid handicap tags on her motor vehicle. How should the management company respond on behalf of the condominium association?
First, the management company should (1) confirm receipt of the request, and (2) request that Jane submits (a) identification of the disabled individual residing in the unit as his/her principal residence, (b) a note from the disabled individual’s treating physician confirming the disability(ies) and explaining the relationship between the disability(ies) and the handicap parking space, and (c) proof that the Maryland Motor Vehicle Administration has granted the disabled person (or the individual responsible for transporting the disabled person) with a handicap placard and/or license plates as a result of the disability. If, upon receipt and review of the documentation from Jane, the Board for the condominium association determines that Jim has a physical or mental impairment which substantially limits a major life activity, then the condominium association should install at least one (1) handicap accessible parking space. Both federal and state law provide that requested modifications to the premises (which includes general common elements of a condominium) may be at the cost of the disabled individual.
It may be that Jane wishes to have the space reserved for her exclusive use. Technically, condominium general common elements are for the shared use and enjoyment of all unit owners. However, depending on the circumstances, it may be appropriate to assign the space to Jane until such a time as Jim no longer resides in the unit as his personal residence or Jim no longer requires the space. Such an assignment would be deemed a reasonable accommodation under the FHA. The assignment should be in writing, executed by the condominium association and the owners of the affected unit, and provide specific language relative to the space being assigned as part of a request for reasonable modification/reasonable accommodation pursuant to the FHA. There is no provision in federal or state law which permits reasonable accommodations to be made at the expense of the disabled individual.
The foregoing hypotheticals are not intended to provide specific legal advice, and the results may vary based on any change in the facts and circumstances of each example. Accordingly, we strongly suggest that, upon being faced with an inquiry relative to a reasonable modification or reasonable accommodation, you contact one of the real estate attorneys in our office for guidance. If not handled properly, the disabled individual may have a valid claim against the homeowners association or condominium, which may result in proceedings before the Maryland Commission on Civil Rights.