One of the growing areas of concern for the board of directors of many community associations across the country is how to handle requests by handicapped residents and prospective residents regarding the designation of parking spaces close to their homes or their front doors, for their exclusive use. The failure to properly respond to these requests can land the association in an extremely expensive law suit funded by public interest groups which may or may not be covered by the association's insurance carrier. Six figure judgments and settlements are not uncommon when a handicapped resident or a group of handicapped residents file claims against associations that do not accommodate their request for the designation of convenient parking spaces for their use.

A major stumbling block for many directors is the lack of clear authority for them to designate parking spaces for the handicapped residents who request convenient spaces. Directors will generally check their governing documents to determine whether they can accommodate the handicapped resident's request. When they do not see any supporting authority for displacing a non-handicapped person from the convenient parking space, they innocently inform the handicapped resident that they cannot give them the convenient parking space that has been requested. Sometime after that they are greeted by a process server and find that they have been named as defendants along with their association for discrimination against the handicapped resident in violation of the Fair Housing Administration Act.

Under the Fair Housing Administration Act (the "FHAA"), it is unlawful "[t]o 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 of that person." 42 U.S.C. § 3604(f)(2)(A). Discrimination under the FHAA includes; 1) refusing to permit a handicapped person to make "reasonable modifications" to his/her living areas which are necessary to enable him/her to have "full enjoyment of the premises," 42 U.S.C. § 3604(f)(3)(A), or 2) refusing 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." 42 U.S.C. § 3604(f)(3)(B) (emphasis added). Although the FHAA places the burden of paying for "reasonable modifications" under subsection (A) on the handicapped individual, it is silent as to who must pay for "reasonable accommodations" required in subsection (B). Courts have interpreted section 3604(f)(3)(B) as not only imposing an affirmative duty upon housing providers to reasonably accommodate the needs of handicapped persons but, in certain circumstances, as requiring them to assume reasonable financial burdens in accommodating these handicapped residents.

Last year a federal District Court in New Jersey issued a ruling that is instructive of the current trend in FHAA discrimination cases faced by community associations. In the case of Gittleman v. Woodhaven Condominium Association, Inc., 972 F.Supp. 894 (D. NJ 1997), the court ruled that condominium associations may be tried for discrimination under the FHAA for failing to accommodate a resident's request for an exclusive convenient parking space on the common elements of the condominium. Mr. Gittleman requested exclusive use of a parking space to accommodate his handicap. The board refused his request in reliance on the terms of the Master Deed of the association which provided that: "the parking spaces within the lands described in Paragraph 1 of this Master Deed shall constitute common elements for the non-exclusive use of the unit owners." Id. at 895. It was the board's position that they could not grant Mr. Gittleman's request without an amendment of the Master Deed, which would require the approval of two-thirds of the members of the association. The board placed the issue before the membership but it did not receive the support of the required two-thirds vote to amend the Master Deed in order to sustain Mr. Gittleman's request. Subsequent to the failure of the attempted amendment, Mr. Gittleman sued the association for discrimination under the FHAA.

The court clearly recognized that this case was "complicated by the fact that the parking spaces are owned by the condominium unit owners as tenants in common." Id. at 897. The association argued that it was unable to grant Mr. Gittleman's request because the parking spaces were common elements for the non-exclusive use of all of the unit owners. As such, the association argued that it was not free to assign an exclusive parking space in derogation of the rights of the other unit owners at the condominium, without an amendment of the Master Deed. Indeed the court agreed with the association "that the Master Deed expressly provides that parking spaces in the condominium are common elements for the non-exclusive use of the unit owners." (Master Deed 6(b)). The Court also agrees with the association that the Master Deed precludes the association from granting an exclusive parking space to a handicapped unit owner without the prior approval of at least two-thirds of the unit owner's votes entitled to be cast." Id. at 899. However, the court went on to say that under federal housing law the association is "duty bound to: (1) avoid enforcing provisions of the Master Deed that have discriminatory effects; and (2) regulate the use of the common elements so as to comply with the requirements of the FHAA." Id. The court based its finding on the grounds that "to the extent the Master Deed contains provisions that, either on their face or as applied, violate the FHAA, they cannot be enforced as written . . . ." Id. Hence, the court found that the association could be found liable for discrimination under the FHAA for enforcing its Master Deed in a manner that had the net effect of discriminating against a handicapped resident, and that denying a handicapped resident a convenient parking space constituted a discriminatory failure to make a reasonable accommodation for Mr. Gittleman.

The court in Gittleman was influenced by the ruling in Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2nd Cir. 1995), where the Second Circuit considered whether a housing cooperative in New York City was required to allocate to a handicapped tenant a parking space in her building, even if the cooperative had to incur the additional costs to accommodate her. In this case, like Gittleman, parking in the cooperative was on a first-come first-serve basis and there were fewer parking spaces than there were residents of the cooperative. Although there was a waiting list by which one could apply for a parking space, the court held that the cooperative must provide the handicapped resident with the space immediately, even if the cooperative had to incur costs in doing so.

In holding that the cooperative could be charged with the costs of such "reasonable accommodation," the court focused on the legislative history of the anti-discrimination provisions of the FHAA. Specifically, it found that Congress intended to mirror the provisions in and draw on case law interpreting the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits federally-funded programs from discriminating on the basis of handicap and requires such programs to reasonably accommodate an otherwise qualified individual's handicap. Id. at 334. The court noted that unlike in Title VII, "reasonable accommodations" under the Rehabilitation Act could involve costs and that the cooperative could "be required to incur reasonable costs to accommodate [its resident's] handicap, provided such accommodations do not pose an undue hardship or substantial burden." Id. at 335.

In this case, evidence presented at trial indicated that the cooperative would not be substantially burdened or subject to undue hardship by providing the resident with a space immediately. Specifically, the court upheld the lower court's findings that; 1) the tenant suffered from multiple sclerosis and, without a parking space in her building, was subject to continued risk of injury and humiliation from her inability to walk distances and incontinence suffered as a result of her multiple sclerosis; 2) three parking spaces in the tenant's building were allocated to employees of the cooperative; 3) commercial garages were located nearby to which the employees could be relocated at a "de minimis cost" (it cost $185 more per month to lease a space in the nearby commercial garage); and; 4) the cooperative could free up seven spaces by enforcing its rule that only one parking space be allocated per unit and that spaces go only to residents.

Finally, in requiring the cooperative to give its handicapped tenant a parking space in the building at the cooperative's expense of moving an employee to a commercial garage, the court stressed how the "reasonable accommodation" was a necessary part of the resident's use and enjoyment of her dwelling. "Without a nearby parking space, [the resident] is subject to a risk of injury, infection and humiliation each time she leaves her dwelling and each time she returns home.... [U]nder these circumstances, nearby parking is a substantial factor in [the resident's] 'use and enjoyment' of her dwelling." Id.

In United States v. California Mobile Home Park Management Co., 29 F.3d 1413 (9th Cir. 1994), the Ninth Circuit also held that in some instances, providers of residential housing must bear the costs related to the "reasonable accommodation" requirement of section 3604(f)(3)(B). Here a resident of a mobile home park sued her landlord for imposing guest fees for her handicapped daughter's home health care aide. In reversing and remanding the lower court's decision that the mobile home park was not required to waive these fees, which are generally applicable to all residents, the court focused on the legislative history of the FHAA noting, as the Second Circuit did in Shapiro, that "Congress anticipated that landlords would have to shoulder certain costs involved [with accommodating the needs of handicapped persons], so long as they are not unduly burdensome." Id. at 1416.

The court then announced that to trigger review under section 3604(f)(3)(B) ... a fee must ... have the potential to deny persons an 'equal opportunity to use and enjoy a dwelling' because of their handicap. There are, of course, many types of residential fees that affect handicapped and non-handicapped residents equally; such fees are proper. Fees that merit closer scrutiny are those with unequal impact, imposed in return for permission to engage in conduct that, under the FHAA, a landlord is required to permit. Id. at 1416-17.

Once review is triggered, "a reviewing court should examine, among other things, the amount of fees imposed, the relationship between the amount of fees and the overall housing cost, the proportion of tenants paying such fees, the importance of the fees to the landlord's overall revenues, and the importance of the fee waiver to the handicapped tenant." The court emphasized that whether a provider must pay for the costs of a reasonable accommodation is to be determined on a case-by-case basis considering whether it "may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." Id. at 1418.

In Jankowski Lee & Associates, et al. v. Cisneros, 91 F.3rd 891 (7th Cir. 1996) the court ruled that when an apartment complex refused to alter its parking policies to allow a handicapped resident to park as close as possible to his apartment, it violated the FHAA. Indeed the court found the owner and manager of the apartment complex liable for discrimination for failing to accommodate the request of the handicapped plaintiff. The string of cases finding that apartment complex failures to alter parking policies for handicapped persons constitutes discrimination under the FHAA is also applicable to community associations. For example the court in Martinez v. Woodmar IV Condominiums Homeowners Association, Inc., 189 Ariz. 206, 941 P.2d 218 (1997) ruled that condominium associations occupy a status similar to that of landlords and thus have similar liability.

If an association is found to have engaged in discriminatory conduct based on its reliance on the perceived duty to abide by the terms of their governing documents, the association may be exposed to liability for the attorney's fees of the plaintiff in addition to its own legal costs. It is noteworthy that a finding of a violation of the FHAA does not require a showing of discriminatory intent. Trovato v. City of Manchester, New Hampshire, 992 F.Supp. 493 (D. NH 1997). Hence, an innocent attempt to enforce the covenants of an association can easily cause a board to place their association in harms way. Once a court determines that the association has violated the FHAA by failing to provide a reasonable accommodation, the association is subject to liability for the attorney's fees of the plaintiff. (See Keith v. Volpe, 644 F.Supp. 1317 (C.D. CA 1986).)

The danger here is that there are a growing number of public advocacy groups who employ major firms to provide "pro bono" services on behalf of aggrieved handicapped persons. The plaintiff's attorneys then generate substantial legal bills, which are charged to the violating association. Often these legal bills exceed any prospective compensatory damages by an extremely large margin. In some cases, an association may find itself responsible for $100,000 to $300,000 in legal fees in a case where the plaintiff's pecuniary injuries are estimated to be negligible or non-existent. If the association does not have insurance coverage for this liability, the staggering legal fees can cripple it.

It goes without saying that many board members of community associations are volunteers who have little or no formal training in the intricacies of association management. Directors tend to rely on the gospel as presented in their governing documents. This can lead to disastrous results when a handicapped resident makes a request for an accommodation that is not sanctioned by the governing documents. That is why it is important to be aware that the terms of an association's documents are likely to be found to be subordinate to the terms of the FHAA by a reviewing court: Directors should apply their documents in a manner that is consistent with the provisions of the FHAA.

As long as the board or the association has control of the use of the parking spaces at the association, (i.e., the parking spaces are general common elements at a condominium or are common area property at a homeowners association), the board should be aware that they may be obliged to accommodate the handicapped resident or prospective resident's request in compliance with the FHAA. If, on the other hand, the parking spaces are controlled by the individual unit owners, such as where the parking spaces are individually owned condominium units or limited common elements assigned to a unit, then there is little to no risk of a violation of the FHAA by the board of directors. In those cases, the board would lack the capacity to accommodate the request for a more convenient parking space because the association cannot control the assignment of those parking spaces.

So, what can an association's board or manager do to avoid a costly lawsuit? The first thing that should be done is to have a plan in place now, before a request is even received. Draft a sample written response to be used when a request is received, and have it approved by the association's counsel. When the association is faced with a request by a handicapped resident or prospective resident for a convenient parking space, you can promptly inform the person in writing that you will begin investigating the possibilities of a solution. Needless to say, when the association receives the request, the board should consult with their counsel regarding the appropriate response to accommodate that request. Ignoring the request or responding improperly can be a very costly error.

After the association has consulted with their attorney and has drafted an acceptable response, the manager or board should take the next logical step in the development of the plan; review the options. Read the governing documents and determine if the parking is designated Common Element, Reserve Common Element, Limited Common Element, individually owned, or some combination of these. Once the association has determined who controls or owns the parking, it can work with counsel to develop appropriate options which can be offered to accommodate a request. A few practical solutions could include:

• If parking is Common Element, the board can assign a space close to the home (or building entrance) as a Reserve Common Element for the exclusive use of the handicapped resident. Proper signage should be installed, and a parking permit issued.
• If parking is not Common Element, consider alternative possibilities such as visitor parking, short term parking, reserved (but not "owned") resident parking, contractor or staff parking. It is easy to reassign one of these spaces as Reserve Common Element for the exclusive use of the handicapped resident. If you displace another resident or staff person to accomplish this, the association should find an alternative place for that person to park, even if that means paying a fee.
• Look at undesignated Common Elements on the property that could be assigned as Reserve Common Element parking. There may be areas that are not currently used for parking which can easily be assigned. If conveniently located, the newly created spaces can be used by the handicapped resident, if not, in can be used to relocate the displaced vehicle from paragraph 2.
• If all parking is Limited Common Element or is controlled by the unit owners (not the association), again, try to find an alternative place to create a space. If there is absolutely no alternative, write a "good faith" letter to the owners who have a conveniently located space. Ask each owner if they would be interested in exchanging their conveniently accessible space for the inconvenient space of the handicapped resident or purchaser. If an owner is agreeable, make sure that the transfer is recorded in the County records. If the exchange is not going to be permanent, make sure the parties involved have an attorney draw up a document outlining the temporary exchange, or a rental agreement.

The most important things to remember are: be prepared by having a plan in place now; have the plan approved by counsel; and, when you get a request to accommodate the parking needs of a handicapped resident or purchaser, respond quickly, and with the approval of counsel.