July 22, 2009

Generally, community associations are subject to the Fair Housing Amendments Act which amended the Federal Civil Rights Act of 1968. The FHAA includes a requirement that reasonable modifications and accommodations be allowed if necessary to enable handicapped residents to use or enjoy their dwellings and facilities. Thus, a handicapped individual may be entitled to a reasonable modification of the common elements to accommodate his or her disability. But may a handicapped person seek a modification which materially interferes with or burdens the rights of the other association members or compels the association to incur substantial costs?

This issue was addressed in two Federal District Court matters. Rodriguez v. 551 West 157th Street Owners Corp., decided in 1998, involved several tenants who sued their landlord for failing to install a wheelchair ramp or lift in a building constructed in 1910. Analyzing the FHAA, the court determined that construction of a new facility, i.e., a ramp or lift, is not an accommodation required by the Act. Moreover, the court indicated that even if the construction of a ramp or lift were the type of modification required by the Act, it would be unreasonable in light of the $25,000 cost to construct. In Thompson v. Westboro Condominium Association, a 2006 decision, the court held that the federal fair housing laws do not require a condominium association to construct an access ramp. In that case, a disabled resident requested that the association construct a wheelchair/scooter ramp to permit her to access her unit. The association agreed that she could install a ramp, at her own expense, but was unwilling to pay for the installation itself. The court determined that an association is not required to construct new facilities to accommodate a disabled resident. The conclusion is that although an association must allow a reasonable modification of common elements to accommodate the needs of a disabled resident, it may require that the requesting resident pay for the modification.

Although an association need not pay for such a modification, it should provide oversight, and it may be in the association’s interest to actually perform the modification on behalf of the resident, albeit at the resident’s expense, to ensure the common elements are properly modified and constructed in accordance with the law and consistent with the community’s architectural design. At the very least, the plans for the modification should be subject to review and approval by the association before construction begins. If the association decides to assume responsibility for the work itself, the association should require that the handicapped resident agree in writing to be responsible for the cost of the modification and perhaps even deposit the anticipated cost with the association prior to the commencement of work, thereby ensuring the association is properly reimbursed.

This article is based upon U.S. federal statutes and case law and the specific facts involved in those cases. In evaluating any particular situation, the underlying facts may lead to a different conclusion, and state and local law may also need to be considered, so legal counsel should be consulted regarding the particular issue.

Brian J. McIntyre is an associate of Hill Wallack LLP in the Princeton office and a member of the firm's Community Association Law and Real Estate Tax Appeals Practice Groups.