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“Ask the Expert”
HOA Boards Must Provide Reasonable Accommodation for People with Disabilities
By Robert I. Long, Esq.
Law Office of Robert I. Long
QUESTION: I have noticed that over the years, and especially recently, many board members become very upset when management suggests they make “reasonable accommodations” for a resident to use nearby outside parking spaces, usually in guest parking, even when the resident (owner or tenant) provides adequate proof for the need for this accommodation. When it comes to parking, what is the association required to do when faced with a request for “reasonable accommodation”?
ANSWER: The short answer is that yes, provided the disability reasonably relates to mobility and the need for a parking space close to the person’s home or unit, the association should make the reasonable accommodation of providing the assigned space, even if it runs contrary to the association first-come-first-served policy regarding guest spaces.
This duty on the association to provide such a reasonable accommodation arises under the Fair Housing Amendments Act of 1988 (“FHAA”), 42 USC §§3601-3631. A common misperception is that the reasonable accommodation requirement arises under the Americans with Disabilities Act of 1990 (“ADA”). The ADA only applies in limited circumstances to associations. The FHAA applies to homeowner associations in myriad ways. It is not possible to provide in the confines of this article a comprehensive discussion of the FHAA, but here are some things to bear in mind. NOTE: key statutory buzzwords and phrases are shown in quotes.
The term “handicapped” is no longer politically correct. Instead, we refer to “disability.” The FHAA not only makes it unlawful to discriminate against a person with disability, but also against a person “associated” with a disabled person. If a common laundry area is restricted to use by residents, the association must make a “reasonable accommodation” to allow a disabled person’s caregiver access in order to do the disabled person’s laundry, even if that caregiver does not reside on the premises.
Exactly what is a disability? The FHAA defines a “handicapped person” as someone having a mental or physical impairment that substantially limits one or more of that person’s “major life activities.” Not only is discrimination prohibited against such persons under the Federal FHAA, California law, Civil Code §4225 also voids a restrictive covenant that discriminates on the basis of disability. Not only does an association have an affirmative duty to remove such a discriminatory provision, its failure to do so may serve as a basis for awarding attorney fees against the association. §4225 (d).
The association may not inquire whether a prospective resident has a disability, but a thorny issue arises when a prospective resident inquires whether the association will approve a modification of the common area or suspension of a rule as an accommodation. In that case, when the disability is not obvious, the association may request “reliable verification” of the disability.
The FHAA makes it unlawful for an association to refuse to make reasonable accommodations in “rules, policies or practices” when such accommodation is necessary for the disabled person to use and enjoy the dwelling or common area.
It is important to distinguish between an “accommodation” and a “modification.” Costs associated with provision of “reasonable accommodations” are generally borne by the association. Providing the assigned parking space is an example of an accommodation, not a modification.
In contrast to the rule in which the association bears the costs of a reasonable accommodation, the general rule is that the disabled resident is chargeable with the costs of a modification. A modification is deemed “necessary” if there is an “identifiable relationship, or nexus, between the requested modification and the individual disability.” Typical modifications include changing doorknobs to levers, installing grab bars in bathrooms, widening doorways to accommodate wheel chairs, installing ramps, and lowering countertops and cabinets. Since the homeowner bears the costs of the modifications, it follows that the board may not unreasonably withhold approval of the modifications. Civil Code §4765 requires an association to provide a “fair, reasonable and expeditious procedure” for making decisions regarding proposed modifications to the separate interest or common area. From a disabled person’s standpoint, this is tantamount to justice delayed is justice denied.
CONCLUSION: If it reasonably relates to mobility issues of a disabled person, an association must make the reasonable accommodation of providing a close-by parking space to the disabled person, even when to do so runs contrary to the association’s rules and policies regarding assignment of parking spaces.
Robert I. Long is the principal of the Law Offices of Robert I. Long, a general, private-practice law firm located in Ventura, California with a focus on community-association law. Mr. Long has been practicing since 1984, and was the 1996 President of the Channel Islands chapter of Community Associations Institute. He is a frequent presenter and author regarding community-association topics.
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