By Robert Meisner

As the population grows older and more people opt to live in condominiums, it is increasingly necessary for Community Associations to be aware of the applicable laws that apply in regard to disabled persons. There are many areas of the law that the Community Association should consider when responding to an accommodation request. The answers to questions such as where and when to provide for handicap parking and whether the Association must approve and/or provide for the addition of ramps for wheelchair access to a unit or to the clubhouse can be found in federal laws such as the Americans with Disabilities Act and the Fair Housing Amendments Act; state laws which in Michigan include the Michigan Handicappers Civil Rights Act and the Michigan Condominium Act; and/or local ordinances. As there are numerous areas of the law that must be considered when answering questions such as these and each situation will have different circumstances, this article will focus on the applicable laws that should be considered in dealing with issues involving parking and community buildings, such as the pool or clubhouse.

Community associations routinely hear complaints and concerns regarding parking, but when the association is presented with an issue involving a handicapped person’s request, complaint or concern about where they park and/or whether they can make modifications to their unit or the common elements, the association should take their concerns seriously and consider the appropriate accommodation.

The Americans with Disabilities Act (ADA), 42 USC 12101 et seq., mandates accommodations for disabled persons. Title III provides that there cannot be discrimination against persons with disabilities in places of “public accommodation”. Most community associations are not subject to the ADA since they are not considered a place of “public accommodation”, but “public accommodations” may include a facility open to the general public such as a pool, clubhouse or parking lot that is located on the condominium property. (Janet L.S. Powers and Timothy Graves, Dealing with the Disabilities Act ADA, Common Ground, January/February 1997.)

The ADA defines certain private entities that are considered public accommodations and uses broad language when categorizing different types of entities. For example, “an auditorium, convention center, lecture hall, or other place of public gathering” is considered a place of public accommodation even though it is a private entity. 42 USC 12181(7)(D). Most parking at a condominium is private parking for co-owners of the condominium; thus the ADA would not apply. The case of Phillips v Perkiomen Crossing Homeowners Association, 12 ADD 713, 4 AD Cas 1759 (1995, ED Pa), held that a private parking lot for residents of the housing development is not a commercial facility and the Homeowners Association is not a private entity that qualifies as a public accommodation under the ADA. There is still a possibility, of course, that a disabled co-owner could make an argument that if a condominium has a guest parking lot or clubhouse that is open to the general public, it may fall under the ADA as a place of “public accommodation”.

The same laws that apply in regard to parking should also be considered when dealing with the clubhouse, pool or other common areas. If the ADA applies, Title III requires that all new construction and/or modifications to existing structures must be accessible to individuals with disabilities. For existing facilities, barriers to services must be removed if readily achievable. If the clubhouse or pool is open to the public, a strong argument exists that the ADA applies; thus an Association should take a close look at their clubhouse or pool area to determine if there are barriers for the handicapped and whether the removal of such barriers is readily achievable. If the clubhouse or pool is not open to the public and only co-owners of the condominium are permitted to use the facilities, it is not likely that the pool or clubhouse would be considered a place of “public accommodation” under the ADA. There are still many unanswered questions about whether the common elements of a condominium, even though private, may become a place of public accommodation. For example, if a co-owner rents the clubhouse for an event and opens it up to the public, has the clubhouse become a place of public accommodation? If a community association has questions about whether an area of their complex constitutes a place of “public accommodation”, it should consult legal counsel as a pro-active measure.

If the ADA is applicable, the ADA Accessibility Guidelines set forth the minimum requirements to be met for accessibility, which include guidelines on such things as parking spaces, stairs, elevators, windows and doors as well as a multitude of other areas of a building. (ADA Accessibility Guidelines for Buildings and Facilities, 36 CFR 1191)

The main distinction between the ADA and other federal and state acts that prohibit discrimination on the basis of handicap is that if the ADA applies to the situation, the association would bear the cost of modification of the area in question; whereas, for example, Michigan’s Condominium Act provides that the co-owner must pay for the cost of modification. (Janet L.S. Powers and Timothy Graves, Dealing with the Disabilities Act ADA, Common Ground, January/February 1997; and MCL 559.147a(1)).

Community Associations should have policies and procedures in place to address requests for handicap parking and/or unit or common element modification. If a Community Association is presented with a request by a co-owner to designate a handicap parking space near his/her unit, the Association should be cautious if it is considering denial of the request or if it does not think the individual is impaired enough to warrant the designation of a handicap parking space. Under the ADA, the Association is not allowed to inquire into the specifics of a person’s disability. Requiring a general certificate from a doctor to determine eligibility for a handicap parking space would probably not violate the ADA, but an Association should not engage in “rating” a disability as serious or not serious enough to warrant an accommodation.

There are many impairments that can qualify as a disability, even short term physical and/or mental impairments. A person is disabled under the ADA if he/she has a physical or mental impairment that substantially limits one or more of his/her major life activities, he/she has a record of such an impairment or he/she is regarded as having such an impairment. Also, the ADA prohibits discrimination against persons who are associated with an individual with a disability. (For example, a parent, spouse or caregiver). As the population grows older and more elderly people move into condominiums, there will be a greater need for handicap parking and/or modifications to the common areas.

If the ADA is not applicable to the issue presented in a particular Community Association setting because the question involves an area of the complex that is purely private and therefore not a place of public accommodation, there are other laws that may apply and provide a basis for a handicapped co-owner to bring an action against an Association if, when requested by a disabled co-owner, it does not provide accommodations for them. To begin, the Fair Housing Amendments Act of 1988 (FHAA) protects the handicapped from the discriminatory housing practices set forth in Title VIII of the Civil Rights Act of 1968. The FHAA provides that “It shall be unlawful… (2) 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, because of a handicap…” Discrimination against the disabled includes “…(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…; (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;…” Failure to provide a handicapped co-owner with a handicapped parking space or to allow for a modification to a unit or common element, if requested, could result in an action against an Association under the Fair Housing Amendments Act and is probably more likely than an action under the ADA since the FHAA is not limited to places of public accommodation.

The Community Association is required to make a “reasonable” accommodation for its disabled co-owners. In Castro v Belle View Condominium Unit Owners Association, a disabled co-owner asked the association to designate as handicapped a parking space in the general common element parking lots. As parking was sparse in the complex, the Association requested the Virginia Department of Transportation to designate as handicapped a parking space on a nearby street for use by this co-owner. The space on the street was approved and was essentially the same distance and terrain as if the space had been granted in the common element parking lot. The co-owner did not want to park on the street because he was afraid that his car might be damaged so he filed a HUD complaint under the FHAA. The Virginia Real Estate Board decided that the parking space on the street did not afford the handicapped co-owner less opportunity to use and enjoy his dwelling than a space in the common element parking lot. It found for the association, as the accommodation it made was reasonable. The community association should also be aware that if there is a waiting list to obtain a parking space and a handicapped co-owner requests a parking space, the association is required to provide the parking space to accommodate the co-owner, bypassing others on the waiting list. Shapiro v. Cadman Towers, Inc., 51 F3d 328 (1995).

Similar to the ADA, under the FHAA, a Community Association could run into trouble if its policies and procedures for dealing with a request for handicap accommodations are unreasonable. In Avato v Green Tree Run Condominium Community Association, a group of handicapped co-owners sued the Association and management company under the FHAA claiming, among other things, that the Association refused to assign a handicapped parking space without the co-owner signing a general release of their medical records. A settlement was entered into providing that the association would accept a simple medical certification instead of requiring release of medical records. An association should make sure that its procedures for dealing with requests for parking and/or modification of common areas are reasonable. If an association suspects that a co-owner is faking a handicap, they should consult legal counsel in order to avoid a possible violation under the FHAA.

Under the FHAA, discrimination includes failure to make reasonable accommodations in rules when the accommodation is necessary for the handicapped co-owner to enjoy his/her dwelling. In Gittleman v Woodhaven Condominium Association, Inc., 972 FSUPP 894 (1997), an Association was required to accommodate the handicapped co-owner even though the Master Deed technically precluded the Association from granting the parking space. The Court said that the Association was “duty bound to (1) avoid enforcing provisions of the Master Deed that have discriminatory effects; and (2) regulate use of the common elements so as to comply with the requirements of the FHAA.” (See also, a case reported in the National Fair Housing Advocate, where a Homeowners Association was found liable to a handicapped co-owner for denying a request by a handicapped owner to install a ramp, as the ramp would displace the landscape. National Fair Housing Advocate, November 1996, p.1.; and in Schroeder v De Bertolo, 879 FSUPP 173 (D.P.R. 1995) involving an action under the FHAA alleging discrimination in housing practices by a condominium where a disabled co-owner was denied use of the common areas.)

What does “accessible” mean under the FHAA? “Accessible, when used with respect to the public and common use areas of a building containing covered multifamily dwellings, means that the public or common use areas of the building can be approached, entered, and used by individuals with physical handicaps.” If the condominium clubhouse does not provide a ramp for access for co-owners who are wheelchair bound, the clubhouse, being a common use area, would not be accessible, and upon a request by a disabled co-owner for some type of accommodation, an Association should take the request seriously and if unsure of the action to take, consult legal counsel.

There are other issues that may arise for the Community Association. If the Association is making improvements to the clubhouse or common areas, there may be accessibility changes that the Association must make pursuant to local ordinances and building codes as well as ensuring compliance with the ADA and/or FHAA. The Community Association should consider where it conducts its meetings and whether the building is handicap accessible as well as being aware of the structure of the interior common areas of their complex such as common hallways and utility rooms in the event that a disabled co-owner has a request for a modification. The Fair Housing Regulations define a common use area to include “…rooms, spaces or elements inside or outside of a building that are made available for the use of residents of a building or the guests thereof. These areas include hallways, lounges, lobbies, laundry rooms, refuse rooms, mail rooms, recreational areas and passageways among and between buildings.”

State laws also may be applicable to questions of accommodations for the disabled. Michigan’s Condominium Act contains a provision that allows a co-owner to make improvements or modifications to his unit, including improvements and modifications to the common elements, at their own expense, if the purpose is to make the unit accessible to a handicapped person or to remove conditions that present a hazard to a handicapped person. MCL 559.147a(1). These improvements or modifications may be made notwithstanding prohibitions and restrictions in the condominium documents. The Act also provides procedures for the handicapped co-owner to submit the plans for the modification to the Association of co-owners for review to determine if the plans meet with the requirements of MCL 559.147a, and provides that the Association shall not deny the proposed modification without good cause. MCL 559.147a(4). The understanding between the handicapped co-owner and the Association should be memorialized in a written agreement.

Michigan also has a Handicappers Civil Rights Act. It provides that “The opportunity to obtain employment, housing, and other real estate and full and equal utilization of public accommodations, public services, and educational facilities without discrimination because of a handicap is guaranteed by this act and is a civil right.”  A person is required to accommodate the handicapper unless the accommodation provides an undue hardship. It provides that “…a person shall not: (a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation or public service because of a handicap…” The statute defines “Place of public accommodation” as meaning “a business…of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.” In addition, the Michigan Handicappers Civil Rights Act contains a provision that states that a person may not in connection with a real estate transaction refuse to permit, at the expense of the handicapper, reasonable modifications of the premises occupied or to be occupied by the handicapped person if such modification is needed to afford the handicapper the full enjoyment of the premises. Nor may a person refuse to make reasonable accommodations that would allow the handicapped person equal opportunity to use and enjoy the real property. The scope of this provision is questionable in the Community Association setting as it applies to “real estate transactions” which are defined as “the sale, exchange, rental, or lease of real property, or an interest therein.” This provision is similar to the FHAA Section 3604 but the FHAA seems to have a further reach since it extends to prohibit discrimination on the basis of handicap “…in the provision of services or facilities in connection with such dwelling…” Specifically, the issue of whether a condominium clubhouse or pool is a place of public accommodation under the Michigan Handicappers Civil Rights Act has not been resolved. As the common areas of condominiums are private property and if the association’s services are not offered to the public, the Michigan Handicappers Civil Rights Act would not seem to apply to community associations. Of course, if an association opens up a common area to the public for use or if a co-owner uses the clubhouse for a gathering and opens it up to the public, an argument could arise that the Act would apply and an association should take whatever reasonable precautions are necessary to avoid that contingency.

If faced with the question of which law is applicable, the FHAA and the ADA provide that if a state law requires dwellings to be designed and constructed in a manner that affords handicapped persons greater access than is required by the federal act then the state law is not limited by the federal law and the greater access requirements would apply.

There are many other areas of the condominium complex that present potential questions about providing appropriate accommodations for the disabled and each situation should be carefully considered and analyzed under current law with the benefit of experienced legal counsel. As for providing handicapped parking and/or making the clubhouse or pool area accessible to handicapped individuals, the best approach is to take each request seriously with an understanding of the implications of the current law. As the population ages, the issues presented to community associations in regard to accommodations for the disabled will continue to grow, forcing community associations to make adjustments and be more aware of the applicable laws that protect disabled individuals.