reasonable accommodation?

Started by AudreyA2 • 34 replies • 2826 views

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AudreyA2 (California)
Posts: 4

Posted:

We are a 30 unit townhouse HOA. Each unit has 2 garage spaces. There are 13 visitor parking spaces,.

A homeowner is asking for "reasonable accommodation" for a new live in resident's car. He presented her handicap sticker. She does not have a visible disability and the vehicle is not an adaptive van or oversized car. ( it could fit in the garage) The request did not provide a reason or relation of the need to park in lot to the disability. The visitor lot is much further away than the attached garage and would require walking about 200 yards to the home. The owner utilizes his attached 2 car garage for his own car and for another person who rents a room and parking from him. In other words, he wants the third car ( which is rarely used) to be stored in the visitors lot under the "RA."

it was decided by the BOD that the owner is responsible for providing the "reasonable accommodation" by giving his disabled roommate one of his attached garage spots. The other "roommate" rents a room and garage space. ( a sideline: The CCRs allow only the full unit to be rented out)

He is threatening a lawsuit under the ADA. Do we cave in and let anyone sublet rooms and parking spaces at the expense of the rest of he community, calling it "reasonable accommodation?

PitA
Posts: 1,416

Posted:

What does your corporate attorney say?

AudreyA2 (California)
Posts: 4

Posted:

Haven't heard yet. My guess is they will try to avoid trouble.

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By AudreyA2 on 05/27/2017 3:38 PM
She does not have a visible disability

Just because "you" can't figure it out, doesn't mean it's not real.

AugustinD
Posts: 5,144

Posted:

Are there other townhomes being partially rented?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Audry,

I see points on both sides.
This is something you need to obtain legal advice on.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I would not jump to a reaction if someone threatened to sue. Doesn't sound like their hands are that clean themselves. If they are renting rooms out and not the whole unit. Those renters are NOT HOA members. Typically HOA's don't have to comply to ADA rules as they are private. It really depends on the set up of your HOA. This will need legal advice for ADA compliance issues.

Remember suing your HOA is suing yourself and your neighbors. So you may want to put that thought into their ears. Your HOA is better to counter-sue if they were to sue any ways. It will cost less on the HOA part by not having filing fees of their own.

Most HOA's I know require the owners to park in their garages. If you have additional available parking, then it's most likely first come/first serve or requires parking permissions. It sounds like your HOA requires permissions. Which doesn't mean it has to grant it. Sounds like you can deny a resident/renter if your HOA wants. What they are asking for is not for a member.

Think your HOA is doing the right thing. The owner wants parking for their tenant? Best put them in the garage. Otherwise the owner gets the additional spot if approved.

Former HOA President

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By MelissaP1 on 05/27/2017 8:46 PM
Typically HOA's don't have to comply to ADA rules as they are private.

It's the anti-discrimination provisions, pertaining to disability, of the Fair Housing Act that the OP needs to worry about.

See http://www.hindmansanchez.com/resources/pdf/discrimination-overview-federal-fair-housing-act-and-study-discrimination-claims/

GwenG (Florida)
Posts: 669

Posted:

Augustin: I am glad you corrected a very false assertion ie that HOA's are private and do not have to comply with ADA.

This is much-misunderstood area and as you stated, the laws of HUD are pertinent to this, as well as to most ADA situations that I have heard of in HOA's.

In this situation, the HOA must ask itself what would it do if ALL THREE of the involved people were owners and not renters? It sounds as though the board did not enforce their Covenants against renting out less than the full unit. Does this give them a pass to now discriminate against the owners' request for a guest parking spot?

I agree with the other poster who suggested giving the Owner a visitor space and letting his tenants use the garage spaces. This makes more sense given the distance walking back and forth to the home for a "disabled" person.

Then, the Association can ponder its CCR's on permitting room renting and their lack of enforcement and how that led to the current peccadillo.

More than ever, Associations need to be aware of the consequences of assuming they are exempt from government regulation because they are "private". HUD is very much in the mix and has recently enacted a new rule about an HOA's obligation to intervene in "hostile housing environments". It costs nothing to file a HUD complaint, and, provided the complaint is not adjudged "frivolous", the homeowner cannot be harmed if their complaint is not upheld (ie Petitioner does not pay the HOA attorney fees).

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By GwenG on 05/28/2017 7:46 AM
Augustin: I am glad you corrected a very false assertion ie that HOA's are private and do not have to comply with ADA.

You may want to reread Augustin's comment.

The document that must be complied with (which allows reasonable accommodation) is the Fair Housing Act.

The ADA applies to public and government facilities.
The FHA applies to private facilities.

Hence, unless the Association has an amenity that is open to the public (non-members - which does not include guests of members), then the ADA applies. Otherwise, it does not.
Yet, the FHA still applies and supports many of the requirements of the ADA.

See: HOA Accommodations for Disabled Residents from an attorney's article.

GwenG (Florida)
Posts: 669

Posted:

@Tim: Do associations which provides visitor parking for "the public" which includes vendors, lawyers, managers and contractors have immunity to providing ADA modifications? While ADA does NOT apply to private common property in theory, the functional reality changes the landscape.

For instance, our homeowner association holds state-mandated bingo games limited to owners and their guests. The gate attendant does not validate that the entering bingo player is a guest of an owner. Generally, the public enters and plays bingo. Is the HOA required to install ADA accomodations when it has knowledge that the public is playing on our common property?

In my HOA, the association attempted to stop work on a home modification contracted by the owner, who is wheelchair-bound 100% and whose mobility is deteriorating. He threatened an ADA complaint and the HOA backed off. He could have cleaned the clock of the HOA if they had persisted in asserting their will. And this is not over because the Owner is not ticked off. The Owner does not have access to the swimming pool, the post office, bathhouses or laundry. There is no lift seat at the swimming pool, there are no ramps to common buildings and sidewalks are not wide enough for wheelchairs. He wanted to run for office and when he spoke at a board meeting about his interest, he could not be positioned on the raised stage to be seen and spoke "invisibly" from floor level. He is an ADA lawsuit waiting to happen...

ADA accomodations should be as uppermost in associations' minds as HUD as the issues are frequently overlapping in reality.

RichardP13 (California)
Posts: 3,868

Posted:

Why is a "reasonable accommodation" or ADA being discussed if the owner is allowed to rent "less than the full unit". The other "renter" is renting garage space, do they have a car. Because of the limited amount of visitor space, all garage space MUST be utilized using vehicles. The person renting storage space needs to find offsite storage.

AudreyA2 (California)
Posts: 4

Posted:

Thank you for all the information, points of view and resources. I will update this situation as it unfolds. I appreciate everyone's comments.

AudreyA2 (California)
Posts: 4

Posted:

Quote:

Posted By MarkM31 on 05/27/2017 7:48 PM

Posted By AudreyA2 on 05/27/2017 3:38 PM
She does not have a visible disability

Just because "you" can't figure it out, doesn't mean it's not real.

I was referring from FHA ACT:

....."when the disability is not obvious, an association can request information verifying:

The person is disabled,

The need for the requested accommodation, and

The relationship between the disability and the requested accommodation......"

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Remember once again... The HOA is a third party to any rental/lease situation. The deal is with the HOA members NOT their tenants/renters. The member is responsible to their tenant/renter NOT the HOA. Don't be threatened by the one legged man jumping up and down... At some point they don't have any legs to stand on...

Former HOA President

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By GwenG on 05/28/2017 9:52 AM
@Tim: Do associations which provides visitor parking for "the public" which includes vendors, lawyers, managers and contractors have immunity to providing ADA modifications?

Yes. That's because it's rare the parking is provided for the public. It is normally provided for the members guests. Vendors are contracted - not public. Lawyers, managers and contractors hired by members are guests of the member. However, FFHA (Federal Fair Housing Act) regulations apply

Now, if the Association sells pool memberships to the general public - now it's a public facility vs. members only facility. We even discussed this in the past:

Subject: Homeowner Assocaitons and ADA Compliance on Homeowner Property 2007

Quote:

Posted By GwenG on 05/28/2017 9:52 AM

Is the HOA required to install ADA accomodations when it has knowledge that the public is playing on our common property?

In my opinion, no. It is expected that everyone is a guest of a member.
Again, FFHA requirements would require reasonable accommodation.

See: Nolan v. STARLIGHT PINES HOMEOWNERS ASSOCIATION 2007 Court Case

Quote:

Posted By GwenG on 05/28/2017 9:52 AM

In my HOA, the association attempted to stop work on a home modification contracted by the owner, who is wheelchair-bound 100% and whose mobility is deteriorating. He threatened an ADA complaint and the HOA backed off. . . . He is an ADA lawsuit waiting to happen...

Incorrect. He would be an FHA lawsuit waiting to happen.

Quote:

Posted By GwenG on 05/28/2017 9:52 AM

ADA accomodations should be as uppermost in associations' minds as HUD as the issues are frequently overlapping in reality.

HUD oversees FFHA complaints
The Justice department oversees ADA complaints

Again, the ADA is for government and public entities
The FFHA is for private entities

Granted, many mandates within the ADA is also within the FFHA. However, the FFHA addresses them as reasonable accommodation (private entity (HOA/COA) allows, homeowner pays) vs. being mandated (ADA requires and government/public entity pays).

See:

Federal Fair Housing Act

The Americans with Disabilities Act of 1990
and Revised ADA Regulations Implementing Title II and Title III

What HOA Owners and Managers need to know about ADA Per this article:

An HOA inadvertently “triggers” the “public accommodation” clause by:

1) Allowing members of the general public to purchase memberships or passes to the HOA pool.
2) Allowing churches, schools or private clubs to use the HOA facilities on a regular basis.
3) HOA maintains a rental office on site that receives regular visits from the general public.
4) “Semi- private” vs. “Purely-private” makes all the difference in the world.
5) HOA rents out or allows their ball fields to be used by local leagues?
6) HOA allows pools to be used for team swim meets.
7) Clubhouse being used for meetings, private sales or shows.
8) HOA allows any other portion of the property to be used by anyone outside the association?
9) HOA allows the clubhouse to be used as “polling place” during election time.
10) HOA provides a walking path across the property and allows people outside of the HOA to use it.

Does my HOA need to comply with the ADA?

I do think that everyone agrees that reasonable accommodation must be made (as this is part of the FFHA as administered by HUD). Additionally, I believe that everyone will agree that if what is considered reasonable is in question, then the HOA/COA should consult with an attorney prior to making a decision.

PitA
Posts: 1,416

Posted:

IN OTHER WORDS:

Quote:

Posted By PitA on 05/27/2017 4:45 PM
What does your corporate attorney say?

RogerD5 (Nevada)
Posts: 7

Posted:

The request if made would come under the Fair Housing act. Be aware that a complaint can be filed at any time. I think the HOA can ask to verify the persons disability if not known,but that is all. Most HOA's look at a complaint as "the cost of doing business" ,but be aware that if HUD finds jurisdiction,the costs and time can be expensive. Also HUD will assign a Federal Investigator and will act as a neutral fact finder,and at some point try to reach a conciliation agreement if the complainants case is viable. If both parties cannot reach an agreement and HUD brings a charge of discrimination, fines can be levied and damages awarded to the complainant. The HOA cannot recover legal fees. I would only contact a lawyer that deals with fair housing cases and turn the the complaint over to your insurance carrier right away. Though carriers will seldom pay on discrimination suits. Look before you leap the water is very deep.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

How did this get to be a federal case??? Really let's step back from the edge here people. It was a threat of a lawsuit. It was NOT a lawsuit. There is a LOT the owner has to do to even follow up on such a threat. Then the HOA has the option to replying to the complaint IF there is a actual lawsuit filed. That is when the HOA can file a counter-suit of their own if they suffer any expense dealing with this issue.

Otherwise, it still needs to be pointed out the request is for an illegal renter to have access to a parking spot. One that doesn't make sense if the owner has a garage. Handicapped? Then park in the garage. Otherwise they have to admit they are subleasing individual rooms against the HOA rules. The owner put themselves in this situation NOT the HOA.

Former HOA President

GaryJ3 (Nevada)
Posts: 31

Posted:

First off nobody here knows anything about reasonable accommodation under section USC42 of the Fair Housing act it is the law.I would make yourself knowledgeable because no one on this board can comment with reliability .Not even HOA attorneys know.Read the HUD guide "reasonable accommodations" It explains everything. Your HOA is private so under the FFHA HUD has jurisdiction and can enforce Federal Housing laws .In your case a potential discrimination against a protected class the disabled. Google it and understand the Law. If it comes to where the member files a claim with HUD, anyone can on the phone,online ect.it's that easy .So don't take this lightly but inform yourself.

GaryJ3 (Nevada)
Posts: 31

Posted:

Quote:

Posted By MelissaP1 on 05/28/2017 5:45 PM
How did this get to be a federal case??? Really let's step back from the edge here people. It was a threat of a lawsuit. It was NOT a lawsuit. There is a LOT the owner has to do to even follow up on such a threat. Then the HOA has the option to replying to the complaint IF there is a actual lawsuit filed. That is when the HOA can file a counter-suit of their own if they suffer any expense dealing with this issue.

Otherwise, it still needs to be pointed out the request is for an illegal renter to have access to a parking spot. One that doesn't make sense if the owner has a garage. Handicapped? Then park in the garage. Otherwise they have to admit they are subleasing individual rooms against the HOA rules. The owner put themselves in this situation NOT the HOA.

First off Melissa this is wrong information read the actual HUD Guide on Reasonable Accommodation .The member can ask for a reasonable accommodation on behalf of the disabled person . There are certain guidelines to asking for an accommodation it can be verbal or written.If the disability is not plainly apparent they can ask for more information.

Here is the Law under USC 42 of the Fair Housing Act.

"A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy,
practice, or service that may be necessary for a person with a disability to have an equal
opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules,
policies, practices, and services may have a different effect on persons with disabilities than on
other persons, treating persons with disabilities exactly the same as others will sometimes deny
them an equal opportunity to use and enjoy a dwelling. The Act makes it unlawful to refuse to
make reasonable accommodations to rules, policies, practices, or services when such
accommodations may be necessary to afford persons with disabilities an equal opportunity to use
and enjoy a dwelling.
To show that a requested accommodation may be necessary, there must be an identifiable
relationship, or nexus, between the requested accommodation and the individual’s disability.
Example 1: A housing provider has a policy of providing unassigned parking
spaces to residents. A resident with a mobility impairment, who is substantially
limited in her ability to walk, requests an assigned accessible parking space close
to the entrance to her unit as a reasonable accommodation. There are available
parking spaces near the entrance to her unit that are accessible, but those spaces
are available to all residents on a first come, first served basis. The provider must
make an exception to its policy of not providing assigned parking spaces to
accommodate this resident."

It will be up to the HOA to open a dialog with requester and the disabled person. Above all if the disability is not apparent or the reason for the accommodation is not stated "ask" the requester always carry the water first. Good faith is much better than Bad faith dealings.
By the way if the Member files a claim with Hud and Hud finds they have jurisdiction the respondent "HOA can respond to the claim. If HUD then Investigates. What ever legal fees are incurred on the HOA they can't recover unless they are insured for such and that's a big maybe. So be very careful.

RogerD5 (Nevada)
Posts: 7

Posted:

Quote:

You cannot file a counter claim....any retaliation will open the HOA and it's board members or the management company to punitive damages.

GwenG (Florida)
Posts: 669

Posted:

Apparently, our HOA, when confronted by the 100% disabled owner, did consult with an attorney and it immediately backed off its position objecting to the modification to his home. It is unknown whether the rationale was ADA or FHA.

Our HOA recently defended a HUD complaint brought against it for discrimination. The charge was ultimately dismissed on technical "time out" charges. But, before that, a full investigation and discovery process was conducted, costing about $40,000 in legal fees and costs. The social damage was unmeasurable. The Complainant paid only the hard costs of their attorney, because the attorney took what he thought was a strong case. Cases are complex and outcomes are unpredictable, but one certainty is that it will cost the HOA serious money to defend an accusation.

ADA or FHA--there are overlapping considerations and ignoring these laws will be expensive. It will not be a problem until the HOA overreaches and intrudes on civil rights.

Tim-great compendium of references and resources on ADA/FHA laws and cases!

AnnC9 (Texas)
Posts: 1

Posted:

God bless you, Gwen G for sharing this HUD rule! It may be the answer or one of the answers to force our HOA to inforce our community rules! Our board President is also the husband of our property manager and together they make all the decisions and have repeatedly refused to force the owner of the condo above mine to find out if sound barrier minimums were installed...they weren't and the owner hasn't complied though I've contacted him on three occasions to discuss not only the squeaks, stomps and dogs running around all day & barking so often and prolonged, they interfere with my work below. I call prospects who've asked for information and the barking can be heard by them. To compound the affect on my work, the adjacent upstairs condo owner has two dogs who're out of control barkers as well...she's run out tenant below for years and the owner below recently sold because he couldn't keep tenants. Sadly, my elderly parents bought the condo for me because I moved back to Texas for their last years of life. Of course they had no idea of problems. We're all upset. No one will help me, though the board members are well aware of the barking because they walk by and the dogs all go nuts barking at them. I recently had an attorney send the HOA President a letter requesting an independent professional determine if sound barrier materials were installed and, if not, install it within a month. That was two weeks ago...no reply and barking and noise continues. I have hours of audio tapes and sent some to board and management but was told I have to report dog noise to animal control so they'll have a record of complaints which would help them take action....I learned Barc doesn't keep records so he said call the police...police won't come out unless owners are home...dogs aren't barking then. He doesn't even know the proper agencies to establish protocols. He's exposing the HOA to lawsuit damages, yet they are sycophant
lap dogs.
When an owner or tenant has over a years worth of audio taped barking, they shouldn't be told it's a he said-she said. Now he sees me as the problem because I'm not going to live this way...it's so unprofessional and mismanaged. I'd like to see the books...guess what they say? No company would do an audit because an owner who had been asking for an audit sued the auditor (not true) and now no auditor will touch their books. What did happen was the owner was given an audit and when he called the company with questions, learned the copy was faked...they never performed that audit. The manager was booted and replaced by current HOA President's wife. Conflict of interest much? It's a nightmare.

CjC
Posts: 210

Posted:

Here is a slightly similar thread from a few years ago

http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/125634/view/topic/Default.aspx

LetA (Nevada)
Posts: 2,679

Posted:

You sated the declarant is renting a spare room to a third party? what does your CC&R's say about rentals and third parties? It seems to me that the declarant is the one on the hook to provide the reasonable accommodations. That means he gives up one of his garage spaces and finds a place off property to park his second vehicle.

BTW what does your CC&R's say about parking for visitors vehicles? how long are they able to park? I am afraid if you cave you'll have 29 other declarants screaming for the 12 remaining visitor spots.

KerryL1 (California)
Posts: 14,550

Posted:

LetA: Please look up "declarant."

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By KerryL1 on 05/31/2017 4:16 PM
LetA: Please look up "declarant."

Why isn't anyone bringing up the issue the Owner is violating the CCRs with renting out "less than the whole unit". We are supposed to be making accommodations for people violating the rules??

LetA (Nevada)
Posts: 2,679

Posted:

Exactly, this story term rental, airbnb, party houses, etc has both city and county code enforcers working triple time.

Personally, renters do NOT belong in a Home OWNERS Association, save that for the non common interest communities.
Renters have caused more grief and more rules, regulations and special treatment where hard working individuals that bust their
humps saving for a home and all they want is a little security in their home investment. Along comes bottom feeders that want to
turn nice neighborhoods into garbage dumps.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By LetA on 05/31/2017 9:32 PM
Exactly, this story term rental, airbnb, party houses, etc has both city and county code enforcers working triple time.

Personally, renters do NOT belong in a Home OWNERS Association, save that for the non common interest communities.
Renters have caused more grief and more rules, regulations and special treatment where hard working individuals that bust their
humps saving for a home and all they want is a little security in their home investment. Along comes bottom feeders that want to
turn nice neighborhoods into garbage dumps.

Sorry, for someone that has managed over 120 HOA's, those are false statements. It is Owners that have caused the most grief. Yes, renters can be a issue, but most of the time it is because of lazy ass owners.

LetA (Nevada)
Posts: 2,679

Posted:

Well Yes Richard You are right on that accord, it is the owners causing the grief, they are renting out to anyone that can fog a mirror.

I would like to see strict tightening of some laws that protect homeowners from absent owners in common interest communities.

1.) less than 10% of the homes should be allowed to rented out
2.) The HOA has a right to conduct a background check including personal references, credit, job, social media etc.
3.) Before said tenant moves in they are to appear at the HOA office, Read, comprehend and sign by each and every CC&R stating that they fully understand and will abide by the rules
4.) The HOA gets to hold a $1200.00 security deposit "I pull that figure because the average rent right now is $1200

Believe me I am steamed, It took 5 years since the developer hand over for my HOA to realize that being passive non aggressive has gotten them into deep kimchi. Now that our community is overrun with rentals, I again feel like I live in an apartment complex.

The other problem is government over-regulations that take power away from homeowners that bring down common interest communities.

FredS7 (Arizona)
Posts: 927

Posted:

> The CCRs allow only the full unit to be rented out

So immediately issue a violation letter for the owner.

> it was decided by the BOD that the owner is responsible for providing the "reasonable accommodation" by giving his disabled roommate one of his attached garage spots.

This is a reasonable response. I would re-iterate it in a separate letter concerning the threat to sue (if that was made in a letter, and not verbally).

Move rapidly on the violation letter, and slowly on the reasonable accomodation.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By FredS7 on 06/01/2017 8:11 AM
> The CCRs allow only the full unit to be rented out

So immediately issue a violation letter for the owner.

The potential problem with doing that now, vs doing it earlier, is the appearance of retaliation for a reasonable accommodation request. This could show the Association in an unfavorable light before a court.

FredS7 (Arizona)
Posts: 927

Posted:

Quote:

Posted By TimB4 on 06/01/2017 7:12 PM

Posted By FredS7 on 06/01/2017 8:11 AM
> The CCRs allow only the full unit to be rented out

So immediately issue a violation letter for the owner.

Perhaps the rental situation became apparent to the board only when the accommodation was requested.

DouglasM6 (Arizona)
Posts: 724

Posted:

Quote:

Posted By TimB4 on 06/01/2017 7:12 PM

Posted By FredS7 on 06/01/2017 8:11 AM
> The CCRs allow only the full unit to be rented out

So immediately issue a violation letter for the owner.

It may. It may also show that this request shed light on the violation.

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