First, a story:
Tennessee HOA Cracks down on Disabled Minister
In the affluent Nashville suburb of Brentwood, Tennessee, the homeowners association of The Woodlands at Copperstone community came down on a family because it built a wooden wheelchair ramp outside of their home.
The person The Woodlands is suing is a much-beloved local minister, Michael Broadnax, who suffered a debilitating stroke, and his wife, Charlotte. While Michael was in intensive care and then a nursing facility recovering, the nursing and rehab staff recommended that Charlotte have a wheelchair ramp installed outside the home.
The ramp was there for several months without a problem. Then the homeowner association’s attorney sent her a letter that contained the following message: “The association demands that within 14 days of the date of this letter, you remove the wheelchair ramp and restore the exterior of your home.”
The letter further stated that if she did not remove the ramp herself, the association would “come onto your property, remove the ramp and charge you with the work.” Were the association were forced to sue her, the letter stated it would obtain a court order forcing her to pay its legal fees.
After local media got hold of the case, the HOA backpedaled, hand-delivering a letter of apology from the attorney, who claimed the letter should not have been sent, as it was not approved by the entirety of the HOA’s board of directors.
If the HOA had not backed off, it may have come up against the Fair Housing Act’s provisions against discrimination, potentially embroiling it in a lengthy and expensive legal battle.
What Is Reasonable Accommodation?
An accommodation is “reasonable” if it doesn’t impose an “undue burden” on the homeowner or condo association or threaten to fundamentally change the nature of the housing. Beyond that, there’s no set rule, and judges have wide latitude to determine what’s reasonable on a case-by-case basis.
However, in no case does the Federal Housing Act or its amendments require HOAs to accommodate anyone who poses a significant safety or damage risk if there are no reasonable measures that can be put in place to mitigate this risk.
What Construction Elements Must Associations Provide?
For buildings first built and ready for occupancy prior to March 13, 1991, there are no specific requirements. Here are the requirements for newer buildings:
- Doors must be usable, with a width of 32 inches or more. Thresholds should be low or nonexistent.
- Light switches, outlets, thermostats and other environmental controls may be no higher than 48 inches and no lower than 15 inches from the floor.
- Common and public areas must be generally wheelchair accessible and useable.
- The entrance and sidewalks to the entrance must be accessible, unless this is not practical because of specific site or terrain characteristics.
- Bathrooms must be constructed with reinforced walls that will support the installation of grab bars.
- Kitchens and bathrooms must be wheelchair accessible.
Who Is Held Liable by the FHA?
The Fair Housing Act applies to homeowners associations like the one in Brentwood, but it exempts landlords with just one or two residential units who do not use a real estate agent to rent or lease the house.
However, no landlord may use discriminatory language that implies a preference for able-bodied residents in any advertising.
What Residents Are Not Protected by the FHA?
People with temporary disabilities, such as a broken foot, don’t fall under the Fair Housing Act. Nor do those using illegal drugs or posing a direct threat to others. Someone with a history of mental illness may qualify for protection. But someone with a history of violence would not, if they posed a threat to others.
Can Associations Ask About Disabilities?
Generally not. But if they need accommodation of some sort, they have to request it.
You also can’t deny a resident because their sole source of income is disability insurance or Social Security. You can set an income requirement, but the source of the income is not the board’s business.
Private Restrictive Covenants
If someone uses a wheelchair and requires a modified van, and it doesn’t fit in the garage everyone uses, or the individual needs to park closer to the residence, it’s easy enough to grant that accommodation.
Other accommodations include granting permission to park on the street after dark or maintaining a reserved spot for the tenant. If the accommodation is reasonable and costs the association no money, refusing the request would probably be a violation of the Fair Housing Amendments Act.
Homeowner and condo associations must allow both service animals and “emotional support” animals. The protection for these animals is broader under the Fair Housing Amendments Act than it is for public accommodation businesses and workplaces under the Americans with Disabilities Act. If you have a no-pet policy, or require a pet deposit, you must waive this policy to accommodate a service or support animal.