Exceptions for disabilities?

A starting point for you:

http://www.ksnlaw.com/knowledge-center/articles/accessibility-standards.html

No one is above the rules. If everyone else has to apply for approval, they do to. Plus if they do have a disability, then the plans need to show accommodations meeting handicap regulations. The fence can be removed by the HOA if they do not comply and the owner sent the bill for removal. So I'd suggest they submit some plans for ya to go over.

Well said Kerry.

Melissa STOP SAYING STUFF LIKE THAT. I know you have a tenuous grasp of reality at the best of times but HOA's can't just go onto someone's property, rip down a fence and send them a bill even if there is something in the CC&R's about curing a violation. It requires a court order or it's called trespass and the person or persons, curing the violation can be arrested without one.

You really need to change the tag at the bottom of your posts from: Former HOA President

To: These are just my opinions and have no actual foundation in either law or reality.

Melissa,

I think the issue was that you stated "The fence can be removed by the HOA if they do not comply and the owner sent the bill for removal" as a matter of fact.

It may be a matter of fact for your Association but it might not be a matter of fact for other Associations.

Perhaps, it may have been better to post something along the lines of "The fence might be able to be removed by the HOA if they do not comply and the owner sent the bill for removal. You should check your governing documents to be sure"

Kerry,

Many on here don't cite laws or their governing documents. This doesn't make their advice bad.

Melissa has offered some good advice in the past and likely will continue to offer good advice in the future. The Association removing the fence may indeed be an option.

My governing documents allows the Association to do this. However, on the advice of our attorney, this should be done only when it's a safety hazard to others and only after specific notifications have been done ahead of time. Even with these notices, as Glen pointed out and our attorney also indicated, without a court order to enter the property the Association may also have to defend themselves against a trespassing charge.

In almost all Associations, the HOA has a right of entry onto all RE regardless of actual ownership to inspect, control, manage, repair, maintain, etc. These rights are dictated by organizing docs and/or state statute. So trespassing not really an issue. But destruction of property may be a whole other ball of wax. Even in Melissa's case. Especially if there is a special need warranted by the ADA or similar law. Once the claim of need is known to the Board, regardless of whether the proper requests were made by the HO, all Boards should tread lightly.

http://www.hoatalk.com/Portals/0/NTForums_Attach/1773440071.pdf

Thank you for the responses. The links some provided were helpful. I would never advocate removing something from ones property unless there was a court order. If the fence issue is not resolved with our ARC I will have to convince the rest of the board to refer any further action to our attorney.

It may be somewhat more complicated than you think Pita.

There may be no violation of the fair housing act without a prior request from the HO, but there's still the issues of destroying someone else's property and potential risk of injury if the lack of the fence/railing/whatever results in a fall that could have been avoided.

Far too sensitive of an issue in my book.

Well, OK. I apologize to you, Melissa. But please remember that probably every day there are folks new to this site and even to HOA life who might count on us. Since you're a veteran here with a lot of posts, these newbies might take your pronouncement as "the truth," when the truth may be more complicated and can vary a lot from HOA to HOA and from state to state. So, I hope you'll take care is tempering the certainty that often seems to be part of your posts.

Np, I'm glad you said almost all Associations.

I know that in my Association, we may not enter the property to inspect. This was actually challenged by a homeowner and on the advice of our attorney, we now only perform inspections from the common area (sidewalks, rear common areas, etc.).

I suspect that COAs, simply because of the design, have more authority to enter private property than HOAs.

Melissa, I don't think he was right so much as he was lucky. I'm not an attorney nor do I play one on the internet but I sure wouldn't go on someone's private property without a court order to cure a violation and depending on the homeowner, I might insist on a police presence while I do it. Nor do I think you could hire a reputable contractor to do it without proof that you had a legal right to do so and showing them a section of the CC&R's isn't legal proof.

Since as ascertain the HOA has the right to cure the violation and bill the homeowner for the costs, why not do it right and add the cost of the court case, attorney fees, filing costs etc. When the HOA files a lien they normally add the costs to the lien amount including the fee to release it.

We don't allow fences or railings period.

But as our population ages in place, long term residents are having difficulties. They need exterior railings and handholds just to navigate getting into their own homes. I see more canes than I ever did.

Our solution is that we don't do anything formally. If someone comes to us, we may make a suggestion orally. Even if they don't come to us and make the changes without our approval, we will approach them and talk about how to blend what they are doing in with the background. We will require a change in color if we think it would make a difference aesthetically. To date, everyone has complied. Nothing is written. All discussions are face to face. That's about it.

So far we haven't had any complaints from the rest of the community or pushback from the HOs who have made accommodations for themselves. We'd like to keep it that way as long as we can.

If anybody blindly 'counts' on the advice here that's on them.

For my fellow Russians:

"Doveryai, no proveryai"
(Trust but VERIFY.)

You MUST allow a fence or railing if it is a reasonable accommodation.
The burden of proof would be upon YOU to show it was not.



You can NOT do anything formally to prevent a reasonable accommodation except 'fudge' and 'imply' and silently disapprove.



So far you have not prevented anyone from their achieving their objective, or conned them out of it. If you follow the law there can not be any push-back.

NpS

I think that much of this discussion stems from the fact that PA is not a heavily regulated State for HOAs & Condos. We think about issues differently. This doesn't mean that we are lawless, only that we actually go through the effort to think through the potential outcome of our actions. Are there abuses? Sure. But in my community, I don't think so. Meanwhile, I have read posts on this forum about the mechanics of how rules are applied in regulated state - and I consider those tactics alienating and offensive. Abuse can come in the rules themselves or in the execution of the rules.

Well said and I agree.

SC is also not a heavy regulated state.

I believe that you have taken John's statement out of comment. He was saying that HOAs/Condos are not heavily regulated in SC just like they aren't in PA. Re your Horizontal property law, by its title alone I can see that it's an old form that has been replaced in many states with much more stringent stipulations. We in PA also have rules - we have a Uniform Condo Act and a Uniform Planned Community Act. We just aren't as heavily regulated as states like CA, FL, VA (Tim has a 200+ page set of county stipulations. My PA county has none), and others.

OP's question:



Answer:

YES, THERE ARE FEDERAL LAWS PROTECTING THE DISABLED!

They are very strongly worded in favor of the disabled.

This may be an issue to reconsider, especially if disabilities are obvious. The thing to remember is it's a 'reasonable' accommodation? Are there alternatives that the HO can use?

This falls more to FHA rather than ADA. ADA is applicable to areas utilized by public. From Colorado, here are some thoughts

There is no requirement that an HOA or other housing provider adopt a formal procedure for processing an FHA request for reasonable accommodation. However, having a formal procedure may assist in both making the process more user friendly for the resident making the request and for the HOA in evaluating and responding to the request. Having a formal process can also help create a paper trail for later review of the matter, in case there is some dispute or claim filed. It is important to note, however, that a request CANNOT be denied simply because the resident did not follow any specific procedure. Failure to use the proper forms or submit the request in a certain way does not automatically disqualify the resident in question. The HOA must always look at the merits of the claim and decide whether it fits within a valid FHA claim for an accommodation based upon a disability or impairment. In our experience, the CCRD and courts also pay close attention to the timing of the process. Did the Association respond in a timely manner? Did they communicate with the resident adequately and seek to understand the resident’s request? Did the HOA seek to reach a reasonable resolution with the resident? These are the aspects that are typically the focus of any review by a court of law or the CCRD (Colorado Division of Civil Rights).

As far as what information can be requested from the resident regarding his/her disability, and what forms can be required to be filled out, that is where it gets a bit trickier. The FHA rules and regulations make a distinction between disabilities that are obvious and those that are not. If a disability is relatively obvious, they FHA rules lean toward respecting the individual’s privacy right and do not allow too much inquiry by the HOA as to that disability. For instance, if a person is obviously blind and uses a seeing-eye dog and/or a long white cane, the FHA will not tolerate an HOA seeking verification of that person’s disability. In this particular case, if the resident in question is observed using a wheelchair and parking with a van that has handicap plates and a wheelchair lift, this would likely be considered an obvious and known disability. In such case, the HOA would probably be required to grant the requested accommodation (assuming such accommodation has a reasonable connection or basis in the know/obvious disability that has been observed). In hindsight, I would be of the opinion in this case that it probably was not necessary for the HOA to request verification from the resident’s doctor of the disability and the need for the accommodation.

But some cases will be less obvious. In less obvious cases, the HOA is allowed to seek information that verifies the person has a disability (within the FHA definition), that describes the needed accommodation, and that shows the relationship between the disability and the requested accommodation.