A disabled unit owner in a condominium association has submitted a request to you as a member of the Board of Directors or the association’s professional community association manager, for an assigned parking space located next to his unit, and a curb cut to allow him easier access to the parking spot. The governing documents define parking spaces as “common elements for the non-exclusive use of all unit owners”… What Happens Now?
The Federal Fair Housing Act and Tennessee’s Fair Housing laws make it illegal to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith [emphasis added], because of race, color, religion, sex, familial status, or national origin.” And “It shall be unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling [emphasis added], because of handicap.”
With regard to disabled homeowners (or renters), the Fair Housing Act requires associations to make “reasonable accommodations or modifications.”
What’s the difference between an accommodation and a modification?
An accommodation would be an exception to the association Master Deed, Declaration, By-Laws or Rules & Regulations that would enable the disabled individual to receive equal treatment within the association, such as designating a parking spot near the entrance as a handicapped space; or reassignment of parking spaces; creating an extra wide parking space; or, overruling parking restrictions to allow the parking of a disability van in the driveway or on common areas. Generally, the association is required to pay for accommodations.
A modification requires physical changes be made, such as building a handicap ramp to the front entrance; a curb cut to allow for easier access by wheelchairs. Generally, the homeowner is required to pay for any modifications to the property. They are also required to restore the property to the original state unless it would not hinder the future rental or sale of the unit. There is some argument they would not be required to restore things that are on the outside of the home like a ramp. The law is unclear in a homeowner situation as opposed to a rental situation.
If the association receives a request for an accommodation or modification, it
should:
1. Ask for documentation that the person is disabled;
2. Determine if the request is “reasonable”;
3. Understand who will pay for any physical changes to the association common area or property; and,
4. Consult with the association’s attorney.
