Reasonable Accommodation request

This has been covered before. Unfortunately, the answer is most likely no. The HOA typically does not have to accommodate residents in their own homes/property. They may on the common property but not individual level.

It may sound cruel but it's reality. They can go to an inground pool if available. Otherwise if there are no above ground pools allowed that is it.

This is about an ACC exception to potentially "reasonably accommodate" (the law's words) a person. Some reality checks:

-- Cancer may count as a disabling condition under the Fair Housing Act (FHA). See https://www.hud.gov/program_offices/fair_housing_equal_opp/disability_overview and also https://www.american-apartment-owners-association.org/property-management/latest-news/is-cancer-a-disability-under-fair-housing-rules and other sites .

-- It's reasonable if it costs the HOA nothing and does not burden in any meaningful way other owners.

-- Under the law, the HOA is supposed to aim to give a person with a disability an equal opportunity to use and enjoy a dwelling, as long as it does not burden the HOA unreasonably. I could look up what unreasonable is in the case law, but dam- it, you've got a sick person at this HOA who is having a lousy life, with a condition that likely does qualify under FHA, and the law in general supports this accommodation. I do not even care about the threat of lawsuits yada if you turned this person down. Just grant the ACC variance. Any fool neighbor questioning the situation had better go study Fair Housing law themselves.

-- SheliaH here posted a link to an interesting recent article discussing a federal appeals court decision on accommodating folks with disabilities who had a service dog not professionally trained. The crux of the decision was that the owner of the dog could train the dog as opposed to having to pay a professional trainer to do it. Why ever did the Court rule this way? Because the expense of a paid trainer is crazy high; ten thousand + dollars, say. It is not fair to require the disabled to pay a small fortune to help with their disability when there is another, much less expensive solution.

-- I would vote to grant the above ground pool on condition that it be removed when the disabled person no longer lives at the home.

-- Anyone thinking, "Hey Augie, you sure weren't keen on Fair Housing rules when that chic came here last week griping about whether her 'innocent' question to management on demographics and the HOA calendar could be a grounds for punishment": Ya, I screwed that up. I am a little glad the moderator deep-sixed the thread.

I get the impression that your owner is asking for an infinity spa. These are almost always hard sided and not flimsy like typical above ground pools. I feel it should be considered and approved.

LetA's suggestion is a good one. I've see lap pools that are above ground, but aren't as big as the above-ground pools you normally see. The board could also specify how big and deep the pool should be before approving it.

I appreciate the person's wanting to maintain health by swimming and while my initial thought was "why didn't he/she just join a fitness club with a pool or the Y?" I remembered COVID has made that option complicated.

That said, there are lap pools that are smaller than 24 foot above ground pools that will do the same thing in a smaller space, so sorry, I wouldn't approve this.

I agree Boards need to be mindful of this possibility. The Board should ask for whatever documentation of the disability HUD allows, with perhaps a requirement that it be re-submitted once a year.

TraceyM2, very cool to watch the size of the pool and check with the neighbors about this and hopefully, head off objections (if the Board does approve this). Not that the neighbors' opinion should affect the Board's view of the law in this matter.

I think that this may turn on whether a homeowner's ability to afford something should be taken into account. From what the OP said, that's the justification for the above-ground pool - otherwise the person could install an in-ground pool, there is no violation of the covenants, and no need for an accommodation, correct?

Considering finances in the compassionate thing to do, but it's a slippery slope. Boards can't waive assessments for financial hardship, for example. Where is the dividing line? Is there one at all?

We would be turning this one over to our attorney for advice, that's for sure.

So far, this appears to be a 2-part questions?

A. Is allowing an inground pool a reasonable accommodation, even though not ordinarily allowed?

B. Is allowing the lowest-cost pool a reasonable accommodation, even though the HOA believes that the next model up would meet be more suitable for the community?

But let's not stop there.

- What say does HOA have on fencing?

- What say does HOA have on placement?

Getting advice from a lawyer makes a lot of sense.

"I believe that statement is completely uncalled for!"

What's wrong with it? There have been people on this website asking questions, they get a response (these are our opinions, after all), but then they reply "here's more information...". That's always irked me because most of the tine, it means the person has already decided what he or she feels and wants to do, but when the responses here don't line up with his/ her opinion, they are more stuff in hopes that'll change the opinion. It might, but its usually easier and faster to include the information at the start.

In this case, it'll probably end with the board getting an opinion from the association and then asking more questions of the homeowner. I would want to see a photo of this pool, ask were it'll be located, how the homeowner will ensure it's maintain we to prevent standing water that creates a mosquito farm, leaks that may result in flooding to neighbors 'property, etc.

Augustine's samp!e conversation is a great example of how these issues should be debated, although I'd also have the homeowner participating. This way, if the variance is granted, we have details on how the decision came about. It doesn't mean the next homeowner would automatically get a variance, but the board will have some idea as to how to approach the request.

I cannot tell if MaxB4's last post was sarcasm or not.

I have been thinking about whether the parallel I am drawing, between {expensive, professionally trained service dog and cheap, but trained service dog; service dogs allowed but only if... } and {expensive, in-ground pool and much cheaper, above ground pool; pools allowed but only if... } is valid. With the legal beagles, I can see this going 51%-49% either way. I think a good attorney would maybe research it and say, "We-elll... " I admit I do not like the extra work this adds to the HOA's plate in the coming years. Documentation on variances falls through the cracks all the time.

I vaguely remember our attorney saying that we are not required to approve an accommodation that violates our CC&Rs. But then when we had a case of an owner asking to park in the street (a violation of our parking restriction), he recommended that we approve it.

So who knows?

One thing I can see is that if you grant a variance that violates a restriction, you're creating a situation that allows other homeowners to sue the neighbor (assuming variances aren't publicized - haven't we said that owners aren't allowed to look at ARC requests from neighbors' homes, only for their own?).

This is different from approving a ramp on the common elements because that only requires ARC approval, at least in my community. The ramp itself isn't a violation and other owners would have no grounds to object.

I think that so much of case law is dependent on picky details that it's easy to find inconsistencies. The courts are basically asking to be inundated with cases, since why the heck not, try your luck if you can afford it. (I really don't like this answer.)

It may be a reasonable accommodation to request but does that mean one that has to be approved?

Thank you for this update. I was predicting HUD would not dare try to advise on a legal issue, particularly when HUD has the potential of being the plaintiff in a federal district court suit against the HOA. I am glad you heard back.

I also would not expect a HUD employee to say anything else.

A reasonable accommodation does not equal the only possible reasonable accommodation which therefore must be granted. An HOA is required by law to grant an accommodation, but it is not required to approve the one that the owner prefers. It may approve the accommodation that best meets the HOA's needs, as long as it also meets the needs of the homeowner.

I also don't think I got an answer as to whether an HOA must consider the owner's finances. It sounds like the lot is large enough to handle an in-ground pool, which is allowed by the CC&Rs. Remove the financial piece, and the need for an accommodation disappears. We also don't know if a large hot tub or something similar would be enough, which also may be allowed by the CC&Rs. Of course, if it's the exercise that provides the benefit, then a hot tub wouldn't work.

If it's possible to turn this over to the association's attorney and let him/her handle the evaluation of the need for accommodation, I'd recommend doing that. I think this is above their pay grade for typical HOA board members, and it also helps weed out any attempt to game the system (not saying that's happening here, just as a general approach).

Max

The longer you are on this chat, the more you will see people thinking they are a "Special Snowflake" or their "problem" can be solved by a BOD ruling that flies in the face of the association docs.

You will also see the, this is my property. Do not tell me what I can or cannot do argument. Along with people shopping/rebutting for the answer they want.

It can get tiresome as you can usually spot/smell them from far away.

Been on it longer than you!

CathyA3, I hear you. I wish all here put a premium on what I call logical and critical thinking skills. Because logic and critical thinking skills are the best chance of getting all on the same page.

Regarding the financial part: My posts above were relying on some gut feelings, until I re-read my last post and what the recent Appeals Court decision observed: That the ADA was intended to promote "independent living and economic self-sufficiency."

(Anyone saying, hey now, what about the legislative intent of the Fair Housing Act Amendments of 1988, which added disability as a protected class? Isn't the intent of the FHA statute different from the legislative intent for ADA? For now, all I know is that the courts constantly draw parallels between discrimination precedent in (1) housing and (2) employment to come to their decisions. It's so common that many a Fair Housing discrimination court decision has relied on employment discrimination precedent.)

I am betting the "economic self-sufficiency" intent of the ADA legislation is well-documented. If one accepts that "economic self-sufficiency" is one intent of the FHA when it comes to disability, then how do we as a society promote economic self-sufficiency of the disabled? By not forcing them to pay 'a lot of money' for accommodations that help them live independently. We'll get to defining "a lot of money."

For the capitalists among us, there is also an argument that some of these accommodations save the taxpayer money. Like maybe disabled neighbor Jane Doe would have to have a health aide haul her to the local YMCA for a swim. Under the law, she may very well be entitled to have Medicare or Medicaid pay for said health aide.

What are the limits of considering the cost to disabled people of xyz accommodation? If I were trying to amend the ADA or FHA, I would not try to imagine all the possible scenarios that arise. I'd leave it to the courts to sort out as situations arise. I would also publicly say, "Well I think our HUD people are generally long-serving civil servants, and they are dedicated to equality in housing. I think they also will help sort these things out." The other day I think our Texan TraceyM2 maybe got one of these HUD civil servants on the phone. Said HUD staff maybe is still a little euphoric that HUD is under a new administration and a new Secretary of Housing that "gets it" and then some. And the HUD staff said, ya, no guarantees, but it seems this person is disabled under the law... and so on.

Back to the gold standard of inputting financial aspects, for this situation, into a decisions-tree run by a computer. I think it could be something like the following:

Does the person have documentation that they are disabled as "disability" is defined by FHA law? If yes, continue. If no, HOA Board disapproves.

Is the accommodation necessary for the disabled person to have an "equal opportunity to use and enjoy her or his dwelling"? If either yes or maybe, continue. If no, HOA Board disapproves.

Do alternatives that are not way expensive exist? If yes, continue. If no, approve the request. For the logic-driven automatons among us (this would include myself), set "way expensive" to be: The alternative costs at least $2000 more than the requested alternative.

Are the alternatives, that are not way expensive, something the applicant has investigated; found unsuitable; and explained, as to unsuitability, in the application? If yes, continue. If no, return application to applicant with request for more information.

Does the Board agree with the applicant that these alternatives, that are not way expensive, are unsuitable, by a reasonable person's standard? If yes, continue. If no, reject the application, with the HOA attorney's explanation.

Do alternatives to the requested accommodation, that are way more expensive than the requested accommodation, exist? If yes, continue. If no, the HOA Board disapproves.

Do any of the alternatives, that are more expensive than the requested accommodation, cost less than $2000 more than the requested accommodation? If yes, the Board rejects the application. If no, the Board approves the application.

Is the immediate cost to the Association of granting the requested accommodation less than $1000? If yes, approve. If no, disapprove, with attorney's review.

I agree. "The law is what the Court says tomorrow," many an attorney is wont to say. When a HOA/condo attorney says somethng like the latter, a HOA/condo director's response laced with profanities seems like a not irrational response to me.

"The law is what the Court... " Oops. Pardon. This is not alt.legal.wisea--.comebacks.

A bit contrary to some of my assertions above, I think a court would look at the expense in a general sense, without regard to the financial situation of the disabled person. The Court would say: Is this cost too high to ask the disabled in general to bear (knowing they already have extra costs as a disabled person)? The HOA directors (inevitably amateurs) need something concrete, while at the same time understanding that it's still 'only guidance. Ya want more, go to law school... '

Yes. You information systems experts should be paid more than many attorneys. Never apologize for demanding proof positive. It's all that keeps certain circles from sliding further down the slippery slope to dumb-downed-ness.

I know! Terrible system, but it's hard to think of improvements, other than something like socialized legal assistance (everyone gets an attorney paid for by the state, which would introduce other problems, of course).

I trust you are aware of how the laws on school segregation and sodomy, to name two subjects, have changed. The law does to some extent evolve with the values of a community. Thee best recent example for me is HUD starting to say, "Nope, HUD will not rubber stamp rejections of convicted felons from apartments/HOAs/Condos. Disparate impact. HUD can prove it." Two decades ago I would have said, "Wha... ?" Today I'm saying instead, "Huh. I am not sure one way or the other. Better read up." Maybe this is progress.

NpS is busting my chops [kidding] in another thread pointing out that county/municipal regs are not always clear about whether something is grandfathered. Life is indeed tough as a HOA Director. It is not for the weak of intellect, unless said weak intellect is loud and bullying and could not give a flying fig about covenants and the law.

lol. Yes, AI. With a heavy injection of bona fide fuzzy logic (the math version of fuzzy logic, not the colloquial version). That's the ticket?

No hearing yet. After the formal complaint and getting the HOA/condo response, HUD decides whether to charge the HOA/condo or not, all the while encouraging a settlement, and all the while keeping the complainant informed that the complainant has the option to pursue the complaint using her or his own attorney, in court or not, pursuant to the latter option as given in the FHA.

I do not consider what you described for the EEOC to be particularly similar to HUD's complaint et cetera procedures.

I do not want to give you a hard time. With a Fair Housing Complaint, I know that either party can reject overtures by HUD to "conciliate," which would go towards what HUD calls a "Conciliation Agreement." I am not aware it's ever called "mediation," granted a mediation is certainly happening. HUD, I guess like EEOC, to some extent wants to keep these things out of court, but if the accused housing provider (including HOAs and condos) is dug into its position that it did nothing wrong, then from my reading (and one real-life experience where I am), HUD will haul the dispute to a federal administrative law judge, unless either party wants the case to go to federal district court. (I gather the administrative law judge route is quicker? You might know.) Either way, HUD is now representing the complainant. The full force of the federal government is now applied to the HOA/condo/housing provider.

HUD does not always win. Per statute, sometimes the government has had to pay the housing provider's attorney fees. So it appears to me that HUD is pretty careful about who it hauls before any judge. Which it seems to me is another reason for all to settle via a HUD Conciliation Agreement. The handful of HUD Conciliation Agreements I have seen are overwhelmingly in favor of the complainant. I am not talking a lot of money. I am talking some money and orders from HUD for the housing provider to have its staff get training; possibly install child-friendly xyz; provide the disabled person the requested accommodation.

I am not sure HUD has a division dedicated to conciliation agreement or a division dedicated to enforcement.

I do feel increasingly that a person has to hire an attorney just to make her or his case effectively with HUD, in the very early stages when I think folks who are "trained" theoretically to separate the wheat from the chaff are reviewing what really might be a case with enormous merit, but the HUD specialist is over her or his head? Not sure. I think things were weird under the Trumpster with HUD. The mainstream media has some reports on this. Maybe it's similar with the EEOC: The first complaint an employee writes would benefit from review and editing by an employee law-specialized attorney.

I suspect the EEOC complaint-related statutes (and corresponding CFRs) are pretty different from the Fair Housing Act statutes (and corresponding CFRs). Maybe there are some general parallels.

You'd have to give an example to convince me the landlord-tenant relationship doesn't have a direct parallel to the Association-resident relationship. Landlord and Associations often provide the same sort of amenities to residents. Both have rules that may have to be adjusted or overlooked to accommodate the disabled, for one. Both had better not be giving kids a hard time, lest they get stuck with a complaint of discrimination on the basis of familial status.

HUD's done a lot on much larger scales, with cities and zoning, for example. I am not sure that apartment complexes were a particular target some decades ago. Maybe in 1988, when disability first came under the FHA, things were busy with apartment complexes and Fair Housing complaints.

Case law on various architectural accommodations approved or disapproved for disabled people, including on pools, is already out there, to give folks an idea of how the courts think about these things. E.g. the interested reader may google: "Fair housing" "disability" "association" "architectural" "pool" site:justia.com

Yada yada.

NpS, I am aware that several years ago, HUD started talking about applying "hostile environment" rules (where the hostility is on the basis of race, sex, or one of the several other protected classes) and how the HOA/condo/apartment complex might be responsible if it gets specific, well-substantiated complaints about racism, sexism et cetera from tenants or owners and does nothing. I think I saw some short and sweet specific rules and guidance on 'hostile environment on the basis of ___ (pick your protected class) codified in the CFR (deriving from the U. S. Code's statutes of course). I think I saw a little case law on, say, resident James harassing resident Jolene, and the HOA/Condo/Apartment complex not responding to the complaints from Jolene. From what I have seen, HUD seems to take on only the most egregious cases of hostile environment discrimination: From what I am reading, the harassment is so extreme that my jaw drops and I am thinking, "Whoa, those HUD civil servants are really earning their money with this one!" With the law of agency, and everyone dotting i's and crossing t's, I am not concerned HUD is going to go hog-wild and file suit against a HOA/condo inappropriately much. The risk is too great that the government would have to pay the HOA/condo's attorney fees. I am not seeing problems with HOA/condo owners' tenants and HOAs/Condos. For example: The HOA/condo informs an owner that tenant John Smith was filmed exposing himself to adult Sally Jones and includes the documentation. If the owner does nothing, then the owner is taking a big risk. And so on. (Notice how this example is about more than just Fair Housing law. Tenant John is probably breaking a few criminal laws.) I guess you see things going haywire. I do not see them going anymore haywire than usual with amateurs on the board. They should turn this over to the attorney.

In my opinion, covenants prohibiting one HOA/condo neighbor from discomforting another HOA/condo neighbor were made to be enforced. I also know this goes contrary to many veteran posters' thinking here, to my dismay. It's a covenant. If the Board has the documentation to enforce a violation, and proper procedures for due process and enforcement, do it.

HUD's done some lousy work, too, as far as I am concerned, costing folks time and money. (Easy for me to say here in the cheap seats.)

Thoughts of an old brain on a pandemic day.

At https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/275839/view/topic/Default.aspx , you referenced a 1998 fair housing dispute, where a DC Condo Association had to pay $550,000 to a condo owner. The link you provided back then is not working on my computer. I turned up this: http://www.onlinehelp.com/library/fairhousinghistory.pdf . From the latter:

"The association did write letters to [the harassing resident, Thomas Schongalla], but did nothing to ensure that he stopped harassing [another resident, Deborah Reeves]. Because the association did next to nothing to stop Schongalla from harassing her, Reeves took her complaint to the Fair Housing Council. The Council helped Reeves file a federal
lawsuit against the association, alleging that the association had violated the Fair Housing Act because it took no action against Schongalla. The Council's activities are partially funded by HUD's Fair Housing Initiatives Program."

Aug's comment:
Ms. Reeves was an attorney in 1998 (and may very well still be practicing). I expect she documented extensively. The message I take from this 22 year old fair housing case is that the condo association should have done way more than write letters. Like threaten suit. Like fine, if possible. Maybe this is with the benefit of hindsight. Maybe this is because I have been watching hostile environment discrimination (against a protected class) cases since about 1986, when the Supreme Court ruled unanimously, 9-0, that an environment hostile on the basis of sex, race et cetera could be discrimination that is unlawful under the 1964 Civil Rights Act. In the late 1980s/early 1990s, the feds started putting out the word that federal civil servants had better take down all those civil servants' workplace posters demeaning women, for one.