For the most part, homeowners association boards try to enforce the rules as uniformly as possible. They want to avoid any accusation of being unfair or treating some residents differently. But there is a time when the board must consider breaking the rules – when special accommodations are needed for someone with disabilities. They may need certain things that other residents would not be allowed to have under the governing documents of the organization.
The board can be in a challenging position, trying to figure out when it is a good time to make some exceptions to the rules. If the rules are followed blindly, the board can be accused of coldly ignoring a disabled person’s needs. Or worse, face a discrimination lawsuit. But to have too many exceptions could lead to anger and resentment by the other members of the community. It can be a bit complicated for the board, so having some understanding of the law and guidelines can be helpful. We’ll outline what the law generally says, and go over a couple of common examples.
The board wants to avoid accusations of discrimination, which can become a lawsuit. Sometimes housing discrimination can be obvious. It’s plainly illegal to not sell a house to a person because of that person’s race, for example. Discrimination against disabled people can be a little more complicated to figure out. It commonly occurs when an HOA refuses to make a “reasonable accommodation” or allow a “reasonable modification” for the disabled person’s needs.
There are two main federal laws that usually come up when considering what modifications an HOA can allow a disabled resident – the Americans with Disabilities Act (ADA), and the Federal Fair Housing Act (FFHA). There are also state and local laws to consider, and we’ll touch on California’s.
How Do the Americans with Disabilities Act (ADA) Fit In?
Under the ADA, all public and government facilities are required to comply with specific use and construction requirements to accommodate disabled individuals. However, note that the ADA applies only to “public accommodations.” Therefore, an HOA will not be subject to the ADA unless the HOA is operating what can be considered a “public accommodation.” A “public accommodation” is any facility that is for use by members of the general public–not solely for use by the HOA’s members and their guests. It is pretty rare, but there have been examples of HOAs being subjected to ADA requirements when: (1) a HOA allows members of the public to buy memberships or passes to the HOA’s pool, (2) where an HOA allows other groups (like schools, church groups or clubs) to use HOA facilities on a regular basis, or (3) where an HOA maintains a rental office on the property that receives regular traffic from the general public.
So the ADA will not apply to all HOAs, but if it does apply to yours, you should know and follow the use and construction requirements.
The Federal Fair Housing Act (FFHA)
The Federal Fair Housing Act (FFHA) applies more directly to more HOAs. The FFHA prohibits discriminating against anyone in housing because of that person’s race, color, national origin, religion, gender, familial status, or disability. Under the FFHA, the homeowners association may not legally refuse to make reasonable accommodations in its rules or policies when such accommodations may be necessary for a disabled owner to fully enjoy and use their home. A common example is when a disabled owner requires the assistance of a service animal; an HOA would be required to grant a waiver from its “no pets” rule. If the HOA refuses to do so, they could be accused of discrimination under the FFHA. The FFHA also requires HOAs to permit a disabled owner to make, at the owner’s expense, reasonable modifications to the owner’s unit and HOA common areas.
A “reasonable modification” is a structural change made to allow a disabled person the full enjoyment of a house or common facility. To avoid violating the FFHA, an HOA may need to allow a disabled person to construct a wheelchair ramp to access a house, even if the ramp violates the CC&Rs. Of course, there are the subjective elements of determining what is “reasonable and necessary” to allow a disabled owner the full enjoyment and use of their home.
And of course, exceptions apply to the reasonable accommodation/modification requirements in the FFHA. For example, a request for reasonable accommodation that imposes an undue financial or administrative burden on the HOA might not be within the homeowner’s rights under the FFHA. So the board may still have to make some decisions about what is reasonable.
It is important to also know what the state law says in regard to making exceptions to HOA rules for disabled individuals. Most states have some regulations, and you want to make sure you are in compliance with them as well. For instance, in California, HOAs have an affirmative duty to make accommodations in their policies and practices to provide physically and mentally disabled residents full enjoyment of their property. Failure to perform these affirmative duties is an act of discrimination. This means that the board has an affirmative duty to not enforce the rules that were necessary to accommodate mentally or physically disabled individuals.
A handicapped resident may make changes to the exterior elements of a building, including the public and common use areas of a building, as well as the residence interior. California law requires that a handicapped individual, at their own expense, be allowed to make reasonable modifications to enable him or her to make the property more accessible or useable. Some common examples of these types of modifications include the installation of fold-back hinges to enable a person in a wheelchair to go through a door, or the construction of a ramp to enable a person in a wheelchair to enter a unit, lobby, laundry room, recreational area or passageways between buildings.
The HOA can require reasonable assurance that such modifications will be done in a workmanlike manner and that required building permits will be obtained.