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Disability can lead to rule exemption

newsQ: Our condominium rules require dogs be on a leash when being walked in the common areas. One unit owner has a note from her doctor saying that she is not physically able to walk her dog on a leash.

In response, the board proposed an amendment to our declaration to allow a person with a doctor’s note to walk their dog in the common area at the rear of our property. The proposal was defeated at a meeting of the owners.

The dog owner insists she is going to walk her dog without a leash anyway. She refuses to hire a dog walker. Besides fining her, what can the board do?

A:Amending your Declaration to fit the needs of one person may not be in the best interest of all owners. But your question presents a common issue: What action can or should an HOA take to accommodate someone with a disability?

A similar situation that I see frequently is when an owner requests the installation of a wheelchair ramp to allow access to the home. The body of law that governs this issue is the federal Fair Housing Act (found here: www.justice.gov/crt/about/hce/title8.php).

The act prohibits discrimination in the provision of services or facilities in connection with a dwelling due to a handicap of the owner or occupant of a home. A “handicap” is defined as a person with a physical or mental impairment that substantially limits one or more of that person’s major life activities, or a record of having such impairment. It sounds like the person you referred to could fit this definition.

The FHA’s definition of discrimination includes “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 … a refusal to make reasonable accommodations … when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”

An HOA’s failure to provide or allow the access to or use of a home or common areas to a handicapped person could give rise to a housing-discrimination claim against the HOA.

What this means to your HOA is that you are not required to amend your Declaration to avoid a discrimination claim, but your board should consider making reasonable accommodations for handicapped persons.

This may mean granting the owner an exemption from the leash restriction for walking dogs on common areas. In condos or townhomes, it may mean allowing a handicapped owner to construct a ramp on common elements to provide wheelchair access to his unit. However, the construction would have to be paid for by the owner, and the HOA would have the right to approve (or reasonably deny) the proposed plans, which might otherwise constitute an unauthorized alteration.

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“Ask The Experts” Articles have been Reprinted with permission from the Charlotte Observer

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