Article Courtesy of  JD Supra

By Lydia Chartre

Published January 21, 2021

Did you know that homeowners have the right to request reasonable modifications to the common area if they are disabled and the proposed modification helps them use and enjoy the property as it is meant to be? The federal Fair Housing Act provides as much, and protects disabled condominium and HOA owners who may require such modifications. How should a Board handle these requests to modify the common area? A recent case out of the Sixth Circuit provides some guidance.

Facts

The United States Court of Appeals, Sixth Circuit, released a decision in late 2020 that held a condominium association Board did not violate the federal Fair Housing Act (FHA) in denying a condo owner the right to install a handrail on the front porch of the unit. These cases are quite fact-specific, so the timeline of facts is important: (1) Approximately June 14: owner calls the property manager and says she wants to put up a handrail for her father, who has fallen off the porch step several times. Her father is a resident of the condo. The owner says she told the property manager that the father was disabled. The property manager told the owner she must submit her request to the Board in writing. (2) June 17: the owner emails the property manger with her request, but does not include any reference that the requested handrail is for her disabled father. The owner provided a photo of what the railing will look like. (3) Over the next two weeks, the five members of the Board considered the written request. (4) By June 27, it was apparent that the request would be denied, at least initially, with 4 members voting “no.” The Board members voting no were concerned that the rail would not match the nearby condos. The owner emailed the property manager that same day, saying that her father had again fallen off the step and went to the hospital as a result. In her email, the owner demanded answers from the Board as soon as possible to prevent further injuries. (5) On July 1, the property manager sent an email to the owner informing her that the Board had denied the request because of concerns that it will not match, and invited her to respond with any questions she had. (6) Following the email, the property manager called the owner and told her that if she had a doctor’s letter explaining why the railings were needed, the Board might approve. The owner proceeded to obtain the doctor letter on July 5, but the Board did not receive the letter until August 3, when it was sent by an attorney for the owner, demanding the rail be approved. (7) The Board voted to approve the railing on August 23, with the stipulation that the owner remove the railing when the father no longer lived there. (8) The owner’s father died a few months later (of heart problems, unrelated to the step/railing issue). The owner decided to sue the Association, claiming that the Board violated the FHA by failing to allow the railing as a reasonable modification when first requested.

Court Rulings

In this case, the Court found that because there was no solid evidence that the Association Board of Directors knew (or should have known) at the time the Board reviewed the request that the railing was being requested on behalf of a resident with a disability, the Association Board was not in violation of the FHA when it denied the request.

Lesson

In this condominium attorney’s opinion, the Association got a bit lucky on this one. Lucky that the Court did not decide to hold that because the property manager (the Association’s agent) knew of the disability from previous conversations with the owner, that the Board should have known when it reviewed the owner’s written request. We see Fair Housing Act cases side with the complaining owner more often than not. Therefore, your Association Board would be well served, anytime you receive a request for a modification of the common area that appears to be for the purpose of accommodating a disability (installation of railing, or a ramp), to ask up front for more information supporting the requested reasonable modification. For example, ask specifically if the requested modification is to accommodate a disability, and if the answer is yes, consult your Association attorney. That way you will know what other questions you can legally ask and can gather additional information to make an informed decision that protects the Association’s interests and keeps you out of court.

READ COURT RULING: Kooman v. Boulder Bluff Condominiums, 2020 WL 6498672 (6th Cir.)