Published on: September 9, 2014
For condominium boards trying to anticipate future challenges, here’s a prediction that bears considering: Fair housing accommodation requests are going to multiply.
This prediction doesn’t require a crystal ball; a general knowledge of demographic trends will tell you what you need to know. Baby boomers are getting older and many of these aging boomers are choosing to age in place, remaining in the condominium units they have occupied for years and sometimes for decades.
Grab bars and ramps that weren’t on the radar screens of 30- and 40- and 50-somethings are becoming necessities as they move into their 80’s and beyond. Imagine the common age-related disabilities – hearing and vision loss, arthritis, chronic illness and dementia, among them – and you’ll see a preview of the accommodations older residents will be requesting.
We’re already seeing evidence of this trend in the questions we’re getting from our condominium clients. One increasingly common query: How should the board respond to a resident of an age-restricted (55- or 65- and over) community who needs a caretaker, if the caretaker doesn’t meet the community’s age restrictions?
The Laws Require Accommodations
The short answer, and the advice we’re giving all of our clients: You treat age-related accommodation requests the same way you treat all fair housing requests – the starting point is state and federal fair housing laws, which require you to grant reasonable accommodations for residents suffering from physical or mental disabilities that substantially limit one or more major life activities. If the resident’s condition meets that definition and if the accommodation requested is reasonably related to the disability, the board must grant the accommodation, unless it is impossible to implement or imposes an undue financial or administrative burden on the community.
If the disability is obvious – if the resident is blind or in a wheelchair – the board can’t ask any questions about it. If the disability isn’t apparent, the board can require the resident to document it with a statement from a qualified professional verifying the disability and the need for an accommodation.
For one condominium client addressing this issue recently, the need for the accommodation was clear: The owner making the request had advanced osteoporosis, making it impossible for her to dress herself, prepare meals and handle other essential tasks on her own. A doctor verified her condition and the caretaker she wanted – her son – imposed no burden on the community. He was simply going to live with her. There was no question about the disability and no basis for rejecting the accommodation request.
Some accommodation requests will be more difficult for the boards confronting them. Consider the likely example of a resident who has difficulty walking and requests a parking place closer to his unit. If parking spaces in the community aren’t assigned, the board can and should reserve a space for this owner’s exclusive use.
If spaces are exclusive easements deeded with the units, the solution isn’t as easy. The board might swap the owner’s space for a guest parking space, making it clear that this arrangement will end when the owner moves or no longer requires the accommodation. But if there aren’t any guest spaces, the board’s hands are pretty much tied. It can’t require owners to relinquish a deeded easement space they own. All it can do is suggest that the owner try to find a resident with a closer-in space willing to exchange spots with him.
Cost and Feasibility
Sometimes the cost of a requested accommodation is cause for concern. Owners must pay for any modifications in their units, of course, and federal law and the laws in many states require residents to pay for common area modifications they request as well. That is not the case in Massachusetts, however. In communities with more than 10 units, in most circumstances, the association is required to pay for necessary common area modifications as long as they are feasible and reasonable. There is no bright line test for those criteria; a reasonable or feasible modification is whatever a court determines it to be.
If it would cost $12,000 to build a ramp from an owner’s unit to a parking lot in a 300-unit community, a court would almost certainly view the $40-per-unit cost as reasonable. But it might well view the $1,100-per-unit cost in an 11-unit community differently. That said, it is impossible to predict how any judge will rule on any specific accommodation request.
Courts will consider structural limitations as well as costs in determining whether an accommodation is reasonable. In a condominium community we represent, a resident who could not easily negotiate the four steps leading from the parking lot to a walkway asked the board to install a ramp next to them. But the board determined that installing the ramp would eliminate parking spaces and impede snow removal and rejected the request for that reason.
The investigator reviewing the complaint this owner filed with the Massachusetts Commission Against Discrimination agreed with the board: There was simply no way to provide the accommodation the owner had requested.
Boards can’t simply reject an accommodation request out-of-hand because they think it is too costly, too difficult, or even impossible to approve. The federal and state fair housing laws anticipate an interactive process through which boards and residents will identify solutions that are reasonable for both. If it would cost 50 percent less to build a ramp to an owner’s back door rather than the front, the board might suggest the less costly alternative and the owner can decide if this solution meets his or her needs. Owners don’t have to accept accommodations that aren’t workable for them, but boards don’t have to approve modifications that impose financial or other hardships on the community. It is obviously best if boards and owners can agree on a solution. If they can’t, a court will determine what, if anything, the association is required to do.
Requests for structural accommodations may be costly, but they are usually fairly straightforward. Requests related to emotional rather than physical disabilities are usually anything but.
Who’s at Risk?
‘What do you do, for example, about the increasingly forgetful owner who leaves food unattended on the stove, repeatedly triggering smoke alarms and creating fire risks? What about the owner suffering from dementia, who wanders around the grounds at night, often becoming disoriented and unable to find her way back to her unit?
The first problem is easier (relatively) to address, because the fire hazard affects the entire community and the board’s authority and obligation to intervene are clear. Exactly what the board should do is less clear, but past experience provides some helpful guidance. One of our clients persuaded a forgetful owner to shut off the gas service to her stove and have her meals delivered.
In another oft-cited case handled by Stephen Marcus in our firm, a Housing Court judge ordered an elderly couple to lock their stove and give the key to a caretaker hired to come in and prepare their meals.
When owners pose a risk only to themselves but not to others – the resident who gets lost wandering around the grounds, for example ― boards don’t have the same legal obligation to act, but they may recognize a moral imperative to do so. We advise our clients and most agree: It is almost always better to offer help to people who don’t want it rather than fail to help someone who will be harmed without the assistance.
What Boards Can Do
These situations are always difficult and fact-specific and there is no blueprint for dealing with them. But there are some things boards can do to prepare in advance:
- Collect emergency contact information for all owners, so you will know whom to contact, or if there is anyone to contact, if aging owners begin to have problems.
- Create a directory of local resources — social workers, medical services, elder care agencies, and the like – that might provide assistance.
- Form a volunteer “lifeline” committee responsible for checking periodically on older or otherwise fragile residents.
- Inspect owners’ units periodically – once or twice a year is reasonable. The Massachusetts statute and many condominium documents give boards this authority, to ensure that there are no maintenance or repair issues that could affect common areas. Unit inspections may also indicate if owners are having trouble taking care of themselves or their units.
- Consider court action if necessary, but only as a last resort.
Boards should also create, if they haven’t already, policies and procedures for dealing with Fair Housing accommodation requests. We recommend that boards adopt a resolution detailing their procedures. The resolution should note specifically that the board may seek additional information from individuals seeking accommodations, may require documentation from care providers, and may propose alternatives to the accommodation requested. Additionally, boards should:
- Require owners to submit accommodation requests in writing.
- Acknowledge receipt of accommodation requests immediately and in writing, indicate that the board is reviewing the request and note the time period within which the board will respond.
- Request additional information if necessary, but be careful about the questions you ask. Privacy laws restrict the amount of medical detail you can seek. You can’t probe for details about how a condition is being treated, but you can and should ask for information verifying that the individual has a condition that meets the legal definition of a disability and explaining how the modification requested will help the individual cope with his/her limitations.
- Don’t ‘just say no’ to modification requests. Be prepared either to approve a legitimate request or to suggest an alternative to it.
- Apply the same criteria and the same requirements to all accommodation requests. Requiring extensive documentation from one owner but none from another will invite a discrimination claim.
- Document everything, starting with the owner’s accommodation request and including the association’s response and alternative accommodations proposed, if any. This documentation will be essential should the association have to defend its handling of the accommodation request in an agency administrative hearing or in court.
- Treat accommodation requests generally and the problems of aging residents specifically with sensitivity, patience and compassion, remembering two things:
- You are dealing with your neighbors; and
- We are all getting older and may need and appreciate sensitivity, patience and compassion ourselves one day.