In this week’s column, I am addressing questions from two readers that relate to accommodations for disabled persons:
Question 1: We have an owner who has requested that he be allowed to construct a handicap ramp on the front of his home. There is nothing in our CCRs or in our Rules & Regulations that allows or prohibits such structures. However, all owners must obtain approval of the ARC (architectural review committee) prior to construction on any homesite.
Question 2: We have a neighbor who wants to bring two large dogs into the community as “emotional support” pets, which have been prescribed by a clinical psychologist. What rights do the owners who live beneath this person, or owners that are afraid of large dogs, have to object to this owner bringing the dogs into their home?
Both of these issues deal with what measures an HOA must take to accommodate an owner’s (or tenant’s) disability, and are governed by the federal Fair Housing Act (link: www.justice.gov/crt/about/hce/title8.php). A disability or handicap is defined as “a physical or mental impairment which substantially limits one or more of such person’s major life activities.”
The Fair Housing Act prohibits discrimination in the provision of housing. Housing discrimination includes the following: (a) “a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises;” and (b) “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” For an owner to show that a modification may be necessary, there must be an identifiable relationship between the requested modification and his/her disability, and the modification must be “reasonable.”
What this means to HOAs is that they must allow reasonable modifications to homes and common areas, and variances to their CCRs, rules and regulations, to accommodate the needs of a disabled person. If there is any question whether an owner is actually disabled, the HOA should request a certification letter from the owner’s physician. However, the HOA cannot inquire as to the nature and severity of an individual’s disability.
Once the HOA is satisfied that a handicap exists, the HOA should allow the modification or variance if doing so would not place an undue burden on other owners’ enjoyment of their property. The HOA is not required to pay for the cost of installing access ramps or other structures to accommodate the person’s disability.
Bottomom line: a handicap ramp on a single-family typically should be allowed. The HOA should have some input on the design and construction for aesthetic reasons, as long as its preferred design does not increase the cost or affect the usefulness of the ramp. However, a handicap ramp might not be appropriate on a condo or townhome if the ramp would block sidewalks or impair access to other units.
The large dogs are a trickier issue. The HOA need not make an accommodation if it would pose a direct threat to the health or safety of other individuals, or if it may result in substantial physical damage to others’ property.
If the HOA board denies the owner’s request to bring in the dogs, the owner could potentially file a housing discrimination claim with HUD. These cases can drag on for many months, consume an enormous amount of the board’s time, and cost thousands to defend.
However, the board does have a fiduciary duty to consider the disabled person’s request in light of the effect that it would have on other owners’ ability to use and enjoy their property, and balance those interests. That’s what a HUD hearing officer is supposed to do, but in my experience, HUD (and the local agencies to which it often assigns cases) often seem to tilt the scale in favor of the handicapped person.
Charlotte attorney Michael Hunter focuses on community and condominium association law for the firm of Horack Talley.
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“Ask The Experts” Articles have been Reprinted with permission from the Charlotte Observer
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