January 1, 1900

Title VIII of the Civil Rights Act of 1968 prohibits discrimination relating to the sale, rental or financing of dwellings based upon race, color, religion, sex or national origin. The Fair Housing Amendments Act of 1988 (FHAA) amended this law, in part, by adding prohibitions against discrimination in housing based upon handicap and familial status and by adding provisions which allow money damages where discriminatory housing practices are found.

In the context of community association living, the FHAA prohibits such discrimination and exposes common interest ownership associations to potential liability, including money damages and fines, even if there is no intent to discriminate. A particular area of concern for associations is that of accommodating the needs of disabled residents. One frequent issue which arises is whether an association must reserve a designated parking space for an owner or resident who claims to be handicapped.

Disabled Entitled to Reasonable Accommodations

The FHAA requires that the association make a reasonable accommodation to a handicapped person who seeks to make access to his or her home easier. Even when parking is limited and every owner wants a parking space close to home, the association must attempt to meet the needs of the disabled owner.

Two federal cases highlight the potential liability of associations in handling such requests. In Jankowski Lee & Associates v. Cisneros, a tenant in an apartment complex, who had been diagnosed with multiple sclerosis, requested that he be assigned a parking spot that was large enough and close enough to his apartment to accommodate his disability. The tenant required such a parking space because he could not get in and out of his car if parked in a narrow spot, and he was not able to walk long distances without resting. The property manager denied the tenant's request because, in her opinion, he did not appear disabled. The administrative law judge found that the owner of the building, the property manager and the managing partner of the building had violated the FHAA for denying the tenant's request for the accommodation and awarded the tenant $2,500 in damages, assessed a civil penalty of $2,500 and required that a parking spot be provided to the tenant that was as close as possible to the apartment.

In affirming the determination of the administrative law judge, the court concluded that the property manager's perception that the tenant was not impaired was irrelevant. The court stated, "[i]f a landlord is skeptical of tenant's alleged disability or the landlord's ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue" to determine the existence of a bonafide disability.

Thus, if a homeowner or a tenant requests the assignment of a parking space on the basis of a disability which is not readily apparent, the association or property manager should elicit additional information and obtain documentation regarding the claimed disability. If additional information is not sought and the association denies the request based solely on its perception, the association may risk liability for discrimination under the FHAA if the individual subsequently demonstrates a handicap.

Restrictive Covenants No Defense

While a community association's master deed is regarded as the controlling legal document governing the rights and duties of the association's board and condominium owners, reliance upon the covenants of the master deed would not be a defense for denying assignment of a parking space based upon a disability in the event such accommodation is requested and deemed necessary. In a New Jersey case, Gittleman v. Woodhaven Condominium Association, a condominium's board of trustees sought amendment of the master deed by the owners to allow the assignment of a parking space to a homeowner who had difficulty walking. However, the amendment failed, and the assignment was denied as being barred by the master deed. The court agreed that the parking spaces were common elements for the non-exclusive use of the homeowners, and that the master deed precluded the association from granting an exclusive parking space without the prior approval of at least two-thirds of the unit owners. Nonetheless, it found the association liable for discrimination. The court reasoned that under the FHAA and the New Jersey Condominium Act, the association could not enforce provisions of the master deed that have discriminatory effects and must regulate use of the common elements to comply with the FHAA. The court held that "[t]he Association cannot seek to avoid liability under the FHAA by using the terms of the Master Deed as a shield."

The Gittleman case, in essence, resolves the dilemma for community associations faced with a request by a homeowner for a reasonable accommodation that is prohibited by the governing documents, but that is mandated by the FHAA. The court clearly found that the association must provide the accommodation in compliance with the FHAA. Associations must reasonably accommodate requests by handicapped individuals to enable them to fully enjoy the facilities. Parking is only one issue that associations face regarding compliance with the FHAA, but other situations may also arise. When faced with a request by a homeowner for an accommodation, an association should consult counsel for advice to ensure that it meets its obligations under both the FHAA and the governing documents.

Andrew L. Jacobson is an associate of Hill Wallack where he is a member of the Community Association Law Practice Group.