railings

Tim...that is difficult, I believe the IBF for railings is only 26 inches tall which if you truly look at it is very low, not sure if that applies in all cases. In your request I would cite the happenings recently in major league baseball with the tragedy in Texas where a guy fell over a 34 inch rail and died and also the Rangers response in raising it, I believe to 42 inches. I would stay grounded in your argument and argue the safety factor. Autism being a disability I would also reference that as a reasonable attempt to keep their child safe.

Good luck.

If denied, tell the buyer they could continue to pursue raising the balcony on their own, but it may take some time. If they want you to do all the work, look for another buyer. This could drag out for years and you need to sell right away. If you start talking lawsuits, the HOA may stop talking to you and route all communication through a lawyer. This could also delay you in selling.

Tim,

This would fall under the Americans With Disabilities Act to make reasonable accomodations.

The purchaser would be responsible after they bought the property to apply for the variance with the HOA. However, I would discuss this idea of raising the railing with the fire department and building codes people. It sounds kind of simple to raise the railing but in doing so can cause other issues. There are reasons why the threshold of height of certain items are the way they are. A taller railing can effect how the fire department can enter the home in case of fire/emergency.

I wonder why people would purchase a home with such a significant concern and then demand accommodation to their circumstances. If you have an autistic child or other handicap, you should shop for a home that wouldn't be such a danger. A person in a wheelchair wouldn't buy a home on a steep hill unless they paid for their own modifications to live there. Why would someone buy a house with a child that could potentially jump off a balcony?

If these people purchase, they should look at more safety upgrades to the door leading to the balcony instead of directing their energy to the last stop off the balcony....

It seems to me it's an ADA issue only after the buyers purchase the condo.

I agree with Petunka. If the buyers are concerned, have them make the approval a condition of the sale. If it's approved, great. If it's denied, it's no sale.

please reread the OP...they haven't bought, want to buy but will only do so if this is approved. I applaud them for a proactive approach in dealing with this issue. They obviously like the property but want it to be safe.

railings are built low for two reasons, cost and view. It isn't so much a threshold of being high but a threshold of being low for costs reasons. The more rail the more cost.

To answer the OP's original question:

I would defend the lawsuit by trotting out the following:
1) Due diligence on the owner's part: what did the owner do to protect the autistic child from the accident. For instance, was the balcony door locked at all times? double locked? If the owners knew the balcony posed a danger to the child, and did nothing, then they are partially responsible, and that could mitigate the damages in the case. If the owners knew of a hazard and did nothing to mitigate it, they could damage their eventual case. "I tried X but was shot down" will not fly far in the courts, if you could have also tried Y and Z very easily too, but didn't.
2) Current safety standard in place in the community. I would show what OSHA, for example, requires of a guard rail, and whether this railing IS or IS NOT applicable to that standard (ie, comparing apples to oranges by showing they are both delicious fruits, even if they are not the same fruit). I would use fire code standards, to see what they say is adequate. I would show other similar buildings with similar railings, to show I was in the community norm for such things.

that's what I would do to defend against the lawsuit.