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08/10/10: The Fair Housing Act: Serious Implications For Community Associations

HOUSING COUNSEL

By Benny L. Kass

You have a handicap and want your condominium association to allow you to park closer to your unit. Your psychiatrist has advised that you should get a dog as a companion, but your association rules do not permit pets. Your unit has bedbugs, but your health condition cannot tolerate the insecticide that your cooperative plans to use to fumigate the building.

What can you do? What are your rights?

The magic words are "reasonable accommodation".

Back in l988, Congress enacted the Fair Housing Act. Oversimplified, that law prohibits housing discrimination on the basis of race, color, national origin, religion, familial status - and disability. Community associations are covered under the Act.

If you have a handicap - physical or mental -your association (or your landlord if you are a tenant) cannot "refuse to make reasonable accommodations in rules, policies, practices or services, if necessary for the disable person to use the housing."

How do you prove disability? According to a very recent case handed down by the District of Columbia Court of Appeals, you must show "(1) a disability, (2) that the landlord (or community association) knew or should have known of the disability, (3) that an accommodation is necessary for the use and enjoyment of the apartment, (4) that the accommodation is reasonable, and (5) that the landlord (or association) refused the accommodation."

Rutland Court Owners, Inc. is a cooperative located in the Dupont area of Washington, D.C. In August of 2007, the coop board was advised that there were bedbugs in the property. The board promptly arranged for an extermination company to inspect each unit and to make the appropriate treatment.

William Taylor has been a coop owner since l972. He suffers from several mental health disorders for which he takes medication; he is assisted by both a case worker as well as his psychiatrist.

According to the Court, "Taylor raised various concerns about the exterminator selection and about the chemicals that would be used in the extermination process".

The coop Board did allow its owners to provide alternative treatment plans, if deemed effective by the Board. And although Mr. Taylor advised the Board that he had started on an alternative plan - based on studies from Johns Hopkins - he did not submit a formal plan to the Board.

Ultimately, the cooperative revoked Taylor's shares in the cooperative and when Taylor did not move out of the building, filed a lawsuit for possession.

At trial, Taylor was required by the Court to allow the extermination to proceed. He requested additional cleaning services to help prepare his unit for extermination. The trial court ruled that this constituted a "reasonable accommodation". Not only did the Board ignore that request, "it proceeded within three months to fine him and, two weeks later, to propose to revoke his shares."

This was determined to be a discriminatory act against Taylor and the eviction request was denied. (NOTE: the issue of whether Taylor's shares were validly revoked was not decided by the Court, since there was a separate legal matter on that issue.)

The cooperative argued to the Court of Appeals that it was not obligated to make reasonable accommodations because the situation was a "direct threat to the health or safety" of other cooperative owners. The high court categorically rejected this argument, pointing out that this defense was "inapplicable until it had been determined that no reasonable accommodation could be made that would 'sufficiently' protect the health and safety" of others. And since ultimately, the extermination was completed, the health and safety issue was moot.

Rutland Court v Taylor was decided on July 8, 2010, and should be read by everyone involved in community association living. The reach of the Fair Housing Act is wide, and Boards of Directors and their Property Managers must be very careful when confronted by a situation involving a disabled person.

The Departments of Justice and the Housing and Urban Development actively enforce violations of the Fair Housing Act. Example: a Washington, DC apartment owner and manager were required to pay $25,000 to compensate a visually impaired man who was refused the right to have a guide dog. The defendants also had to pay a $20,000 civil penalty to the US government. Example: a condominium association paid $70,000 to a ten-year old resident with a disability when the association required residents who use wheelchairs to enter the building only through its rear service entrance, even though the front entrance was fully accessible to wheelchairs.

One myth often heard about the Act is that although the association must make reasonable accommodations to disabled persons, those persons have to pay for those accommodations.

That is the law. However, HUD and the Justice Department do not necessarily share that view. According to a May 14, 2004 Joint Statement, the housing provider may be required to pay for making reasonable accommodations, so long as it "does not pose an undue financial and administrative burden and the requested accommodation does not constitute a fundamental alteration of the provider's operation. The financial resources of the provider, the cost of the reasonable accommodation, the benefits to the requester of the requested accommodation, and the availability of other, less expensive alternative accommodations that would effectively meet the applicant's... disability-related needs must be considered in determining whether a requested accommodation poses an undue financial and administrative burden."

Disabilities and handicaps will, unfortunately, always be with us. What should community associations do? They should adopt guidelines for processing requests for reasonable accommodations. For example: each request must be fully documented; all requests must be acknowledged within a reasonable short period of time; all requests must be decided within 30 days - unless the board needs more time to investigate - and the requester is so notified, and all requests must be treated as confidential.

Parking is always a problem. If the parking area is not specifically allocated to an owner - either by direct deed or as a limited common element, then the Board is required to make "reasonable accommodations". However, if an owner has an ownership interest in a parking space, unless that owner is willing to swap spaces, the Act does not apply.

For more guidance, go to the Fair Housing Act section on www.hud.gov, and www.justice.gov.

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