APPEALS COURT SAYS MASS CONDO ASSOCIATIONS DON’T HAVE TO PAY FOR FAIR HOUSING MODIFICATIONS
A Massachusetts Appeals Court has rejected a long-standing interpretation of the Massachusetts state statute (which prohibits housing-related discrimination) that required condo associations in many cases to pay for common area modifications requested by disabled owners and residents.
In a decision that associations will cheer – and with good reason (Geezil vs. White Cliffs Condominium Four Association, et. al.) the court concluded that condominium associations are not “owners” of common areas, as defined by the state law, and so are not required to pay for common area modifications.
The original plaintiff in the case, Mary McLellan, wanted to install raised steps leading from the upper and lower levels of her unit to her patio to address her serious mobility issues. The patio while exclusive use to McLellan was common area. The association, White Cliffs, approved the change but said McLellan would have to pay for it. She sued, claiming that the association’s decision discriminated against her, in violation of the state law. McLellan passed away while the litigation was ongoing. When a Superior Court judge ruled in favor of the association, the Personal Representative for the Estate of McLellan appealed.
McLellan argued that the association met the statutory definition of an “owner or person having the right of ownership” and that her unit qualified as “contiguously located housing.” The court rejected both arguments.
Defining “Owners”
On the key question (ownership), McLellan argued that the association “owned” the common areas, including her patio, which was common area, although owners had easements for the exclusive use of patios adjacent to their Unit. But the court found that the “owners” of a condominium are the unit owners, who “own their units individually and the common areas jointly.” The association manages and regulates the common areas of a condominium, the court said, but it does not own them. “The association is not ‘the owner or other person having the right of ownership…under the usual and accepted understanding of the terms ‘owner’ and ‘ownership.’ “
The court noted that the statutory language specifically includes “organizations of unit owners” on the list of entities who are precluded from discriminating but limits the obligation to pay for modifications to “the owner or person having the right of ownership.” The court found the wording differences to be both significant and intentional.
“If the Legislature had intended to impose the financial burden of making reasonable modifications on a condominium’s organization of unit owners,” the court said, it could have done so. Because it did not, “we can readily infer that the Legislature did not mean to impose on condominium associations [or others] the cost of modifying individual units to accommodate their occupants.”
The plaintiff’s arguments relied heavily on a 2010 MCAD decision (Kacavich and MCAD vs. Halcyon Hill Condominium, et.al.) concluding that a condominium association meets the definition of an owner who is required to pay for common area modifications. The Appeals Court rejected that interpretation. As the agency responsible for enforcing the state Fair Housing law, the MCAD’s interpretation “is entitled to deference,” the court acknowledged. However, quoting from other appellate decisions, the court noted that “principles of deference ‘are not principles of abdication.’ If the agency’s interpretation is inconsistent with ‘the plain meaning of the statue, the agency view would have to give way.’ We conclude that is the case here,” the court said.
Legislative Intent
In addition to rejecting McLellan’s key argument – that the association ‘owned’ the common areas –the court also found that her unit did not meet the definition of “contiguously located housing consisting of ten or more units” for which owners would be required to pay for modifications. To qualify under the statute:
The housing must be “offered for sale lease or rental.”
The person “offering” the housing must be someone “who owns or at any time has owned, or who otherwise controls or at any time has controlled the sale of ten or more housing accommodations.”
The housing accommodations must be “located on land that is contiguous…”
While agreeing that her unit was not being offered for sale, lease or rental during a relevant time period and that the association had never sold, leased, rented out, owned or controlled the sale of ten or more units, McLellan argued that the original developer of the condominium community at some point in time met all three criteria.
The court concluded otherwise. Nothing in the statute indicates that the Legislature intended its definition of “contiguously located housing” to apply to housing “that was not currently being offered for sale, lease, or rental, but had been offered for sale, lease, or rental at any time in the past,” the court explained. Had the Legislature intended to include housing previously offered for sale, lease, etc. in its definition, it could have used language doing so, the court said, but lawmakers “chose not to do so,….and [we] will not change the meaning of a statute by inserting language that the Legislature omitted. “
Finding that McLellan “had no reasonable expectation” of proving that the association met the statutory definition of an “owner” or that her unit qualified as “contiguously located housing” offered for sale, lease or rental, the Appeals Court upheld the lower court decision in favor of the association, thereby turning a long-standing interpretation of the state law on its head.
Unqualified Victory
This decision is an unqualified victory for condominium associations, which will no longer be required to foot the bill for the common area modifications sought by disabled owners and residents. This is no small matter. One of our clients recently had to pay $35,000 to install a ramp giving a handicapped resident access to a common area door. Countless other associations have faced similar or greater costs.
The decision aligns Massachusetts law with the federal counterpart the Federal Fair Housing Act, requiring owners to pay for the modifications they need. One possible result may be a reduction in the number and/or cost of the modifications owners and residents seek. If the association isn’t required to pay, some owners may opt for less expensive modifications or, perhaps, decide that the modifications aren’t essential.
While the decision puts the cost burden where it should be – on the owners who need modifications –it does not change the requirements and best practices for handling Fair Housing modification requests.
Associations must approve reasonable requests. This is a fundamental requirement under both the state and federal Fair Housing laws.
Boards can’t dictate the choice of a contractor, but they can require that owners or residents:
Use contractors who are licensed and insured;
Submit a description of the work for approval by the Board;
Require that permits be pulled and submitted to the association; and
Require copies of Certificates of Insurance, naming the association as an additional insured.
Boards must engage in an interactive process with applicants. They can offer alternatives to requested modifications, but in most cases, they will have to approve the modifications sought.
Boards may be able to reject a common area modification if it isn’t feasible – because it violates the building code or because it won’t work within the structure ꟷ for example, if a stairwell is too narrow to accommodate a chairlift and can’t be expanded. But the grounds for rejecting a modification request are slim and the risks of a discrimination claim are large.
Boards should consult the association’s attorney when they are uncertain as to whether they should approve them. The best way to avoid a discrimination claim is to avoid the legal missteps that will result in one.
For questions about modification requests or about Fair Housing Law, please reach out to MEEB’s resident expert, Pamela Jonah.