We receive many questions from our clients related to owner requests for disability accommodations, such as permission to install a wheelchair ramp on association property. Our research on this issue has led us to share the following information with our clients:
- Associations must follow the requirements of the Fair Housing Act (the “Act”), even those portions that were enacted after the establishment of the association.
- Requests for wheelchair ramps are typically considered reasonable modifications by courts unless the request imposes an unreasonable financial or administrative burden on the association.
- If a less burdensome alternative (e.g. a retractable ramp or wheelchair lift) is available that still meets the needs of the disabled owner, the association may propose that option. If the proposed option is more expensive than the owner’s requested option, the association would be responsible for the additional cost. An association rule prohibiting permanent wheelchair ramps is likely invalid under the Fair Housing Act.
- Before making a decision on an owner’s request for accommodation such as we are discussing here, it would be reasonable for the Board to request that the owner provide information about the materials that will be used to construct the ramp and railings. Since the Association is likely going to be responsible for maintenance, the Board may choose to require specific low maintenance materials be used (like concrete with steel handrails). If the cost of these materials is more than the materials proposed by the owner, the Association would have to pay the difference.
- An association would also likely be responsible for the maintenance and repair of the modification if it is used by anyone other than the owner. Courts have held that this is true for wheelchair ramps installed in the common area lobby of a building. This would likely also be true if the Board insisted on a more expensive alternative modification that was also more expensive to maintain, even if this owner was the only user.
- The association may impose reasonable conditions regarding the installation of the wheelchair ramp, but should obtain the owner’s written consent to any conditions it imposes, including requiring that:
- The installation be performed by a licensed bonded contractor;
- The installation comply with the building code and the remaining portion of the stairway comply with the building code as well (minimum of 36” wide); and
- All applicable city/county permits for the work be obtained by the owner or her contractors.
- Any complaint regarding alleged discrimination under the Fair Housing Act would be filed with the Department of Housing and Urban Development (HUD). If a HUD complaint is filed prior to the Board making a final decision, the Board should proceed with its decision making process and communicate its decision to the owner.
- If a HUD complaint is filed after the Board has communicated its final decision, the Board should refrain from taking further action until it is able to consult with the association’s attorney and with the HUD representative investigating the complaint.
- The Act provides that an Association may not require that owner to obtain liability insurance with regard to the modification. This requirement could be interpreted to restrict the Association’s ability to require an owner to sign a hold harmless agreement.
If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!