6/7/13 Know your rights under the Fair Housing Act before you sue
By Benny L. Kass, Published: June 7
A recent Virginia case involving the U.S. Fair Housing Act is a cautionary tale for disabled people suing their homeowners associations for accommodations and for the associations fighting the disputes.
Because both sides made mistakes, neither can claim a complete victory.
Jacob Scoggins, who was partially paralyzed in a car accident as a child, is now in his 20s and living with his parents in a Virginia townhouse.
The parents asked their community association - Lee's Crossing Homeowners Association - for permission to add a ramp to their home so that Scoggins could access the front door using his wheelchair. There is another ramp into the garage, but the parents wanted to make sure that Scoggins would have another way to vacate the house in the event of an emergency.
This case was based on the Fair Housing Act, which, oversimplified, prohibits housing discrimination on the basis of race, color, national origin, religion, familial status - and disability. Community associations are covered under the law.
If you have a disability - either 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 disabled person to use the housing," according to the law.
The magic words are "reasonable accommodations."
Scoggins's request reached the board on Sept. 20, 2010. According to the HOA legal documents, the board had 30 days to respond as well as request additional information before making a decision.
But on Oct. 13, about a week before the 30-day period ended, Scoggins and his parents filed a lawsuit. Five days later, the board notified the parents that the application was denied mainly because the request was not complete and the association could not determine whether it had merits.
"All that the board wants is to get proper information showing exactly what is proposed and exactly where it will be installed," Robert Diamond, a lawyer representing the association, said in an interview.
Last month, an appeals court supported Scoggins's idea that the ramp was needed, but it agreed with the lower court that the lawsuit had been filed prematurely. The suit was dismissed without prejudice, meaning that Scoggins could refile it.
The lesson for disabled people with disputes against their HOAs is they need to follow the rules. They must exhaust the associations' administrative remedies before filing suit. If the condo board says it will respond in 30 days, wait 30 days before rushing to file suit. This case took three years to wend its way through the courts; the issue probably could have been settled in a fraction of that time with the HOA board.
Communication generally resolves most disputes, and that's much less expensive than litigation.
For his part, Scoggins said, "We will go back to the HOA and see if they will now allow the ramp without our having to go back to court."
In its decision, the appeals court also determined that the HOA, though it prevailed in the lower court, should not be awarded legal fees from the Scoggins family as it requested. The court relied on a U.S. Supreme Court case that held that when an action involves a civil rights matter, legal fees will be awarded only in a "finding that the plaintiff's action was frivolous, unreasonable or without foundation."
Many HOAs include statements in their bylaws indicating that plaintiffs who lose suits against an association could get stuck paying its legal fees. The lesson for associations is that the language may not hold up if the case involves disabilities, race, gender, sexual orientation or other civil rights issues.
It's important for disabled residents and condo associations to know their rights and obligations under the law.
The Department of Justice and the Department of Housing and Urban Development actively enforce violations of the Fair Housing Act. For example, one condominium association paid $70,000 to a 10-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.
A recent report from the National Fair Housing Alliance, a consortium of more than 220 organizations and individuals involved with civil rights issues, said that 28,519 complaints last year were investigated by government agencies and private nonprofit organizations. The entire study, called "2013 Trends Report" can be found at www.nationalfairhousing.org.
And for more guidance, go to the Fair Housing Act section on www.hud.gov.
Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.