Introduction
Persons with disabilities who reside in condominiums have several statutory protections available to them designed to prevent discrimination against the disabled. These protections include the federal Fair Housing Amendments Act (“FHAA”), 42 USC 3604. The FHAA applies to housing, and to the provisioning of services in connection with housing. While the FHAA addresses the circumstances where a person with a disability seeks to modify or improve their residence, a condominium association must also be aware of the protections afforded a person with disabilities contained in Section 47a of the Michigan Condominium Act, MCL 559.147a.
Section 47a of the Michigan Condominium Act not only describes those circumstances under which a unit co-owner may modify or improve their condominium unit, Section 47a also provides a unit co-owner with the right, under certain circumstances, to modify or improve the common elements of the condominium project – even though the common elements are not owned exclusively by the unit co-owner. Further, Section 47a also describes the procedure under which an association may consider a request for a modification or improvement for a person with a disability, and a failure by the association to follow this procedure could inadvertently lead to an automatic approval of the requested modification or improvement—even over the association’s objection.
The Fair Housing Amendments Act
Section 3604 of the Fair Housing Amendments Act, (“FHAA”), 42 USC 3604, prohibits discrimination on the basis of a disability in the provision of services in connection with housing. In relevant part, Section 3604 states as follows:
. . . [I]t shall be unlawful—
. . .
(2) To 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—
(A) that person; or
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that person.
(3) For purposes of this subsection, discrimination includes—
(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.
(B) a refusal 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 USC 3604(f)(2)-(3). In order to prevail on a reasonable accommodation claim under the FHAA, a plaintiff must make a prima facie showing that the accommodation sought is reasonable on its face. US Airways, Inc v Barnett, 535 US 391, 401-402 (2002) (applying the Americans with Disabilities Act, 42 USC 12101, et seq.). Once the plaintiff makes this initial showing, the burden then shifts to the responding party to demonstrate that the accommodation sought would impose an undue hardship. US Airways, 535 US at 402.
Examples of modifications generally considered to be reasonable include widening doorways to allow access for wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets, adding a ramp to a primary entrance, or altering a walkway to provide access to a public or common area. See Joint Statement of The Department of Housing and Urban Development and The Justice Department, Reasonable Modifications Under the Fair Housing Act, Mar 5, 2008.
The Persons with Disabilities Civil Rights Act
In addition to the FHAA, protections also exist for persons with disabilities under the Michigan Persons with Disabilities Civil Rights Act (the “PWDCRA”), MCL 37.1506a which states:
(1) A person shall not do any of the following in connection with a real estate transaction:
(a) Refuse to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by the person with a disability if those modifications may be necessary to afford the person with a disability full enjoyment of the premises. In the case of a rental, the landlord may, if reasonable, make permission for a modification contingent on the renter’s agreement to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.
(b) Refuse to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford the person with a disability equal opportunity to use and enjoy residential real property.
Similar to the undue hardship requirement of the FHAA, the Michigan Court of Appeals has previously held that the PWDCRA is subject to the additional requirement that the reasonable accommodation or modification not impose an undue hardship on the person from whom the accommodation or modification is requested, a limitation contained in MCL 37.1102(2). See Bachman v Swan Harbour Ass’n, 252 Mich App 400, 413-414; 653 NW2d 415 (2002); see also MCL 37.1102(2) (“a person shall accommodate a person with a disability for purposes of . . . housing unless the person demonstrates that the accommodation would impose an undue hardship.”).
Notwithstanding its prior ruling in Bachman, supra, the Michigan Court of Appeals has recently clarified that the PWDCRA does not apply to post-sale conduct. In Estate of Romig by Kooman v Boulder Bluff Condominiums Units 73-123, 125-146, Inc, No. 347653, issued October 15, 2020 (Docket Nos. 347653 & 348254), the Michigan Court of Appeals ruled that a condominium association’s alleged denial of a request to install a railing to accommodate a disabled person did not constitute discrimination in a “real estate transaction” under the PWDCRA. Specifically, in a published opinion, the Court held that the PWDCRA only applies to pre-sale disability discrimination and that the remedy for post-sale disability discrimination must be based on the Michigan Condominium Act, specifically, MCL 559.147(a)(1).
The Michigan Condominium Act
While the FHAA applies to condominiums, it does not provide specific guidance as to disability claims in the condominium context beyond its general application to housing. By its own terms, however, the Michigan Condominium Act expressly addresses this issue and requires that an association allow a unit co-owner to improve or modify their unit and the condominium common elements for persons with disabilities in certain circumstances. Section 47a of the Michigan Condominium Act states in part:
(1) A co-owner may make improvements or modifications to the co-owner’s condominium unit, including improvements or modifications to common elements and to the route from the public way to the door of the co-owner’s condominium unit, at his or her expense, if the purpose of the improvement or modification is to facilitate access to or movement within the unit for persons with disabilities who reside or regularly visit the unit, or to alleviate conditions that could be hazardous to persons with disabilities who reside in or regularly visit the unit.
MCL 559.147a. Under this language, and subject to the remaining requirements of MCL 559.147a, an improvement or modification may be made to the co-owner’s condominium unit, to common elements, and to the route from the public way to the door of the unit “to facilitate access to” the unit, “to facilitate . . . movement within” the unit, or to “alleviate conditions that could be hazardous to persons with disabilities . . .” for the benefit of persons with disabilities who reside in or regularly visit the unit.
While the FHAA contains a limitation that the accommodation not impose an “undue hardship,” with the “hardship” potentially creating flexibility for the person from whom the accommodation is being requested in denying the request, the Michigan Condominium Act does not use such language nor provide such flexibility. Instead, the Michigan Condominium Act, without using the term “undue hardship,” identifies the general factual circumstances that would need to be satisfied for a request to be denied (i.e., for an association to find “good cause” for the denial of a request). In other words, the Michigan Condominium Act itself describes the “undue hardship” that would warrant denying a request for a reasonable modification or accommodation.
In this respect, any proposed improvement or modification:
- “shall not impair the structural integrity of a structure or otherwise lessen the support of a portion of the condominium project[;]”
- “shall comply with all applicable state and local building code requirements and health and safety laws and ordinances[;]” and
- “shall be made as closely as reasonably possible in conformity with the intent of applicable prohibitions and restrictions regarding safety and aesthetics of the proposed modification.”
In addition to the foregoing, the Michigan Condominium Act imposes requirements for improvements or modification that affect the exterior of a unit or other common elements.
- If the improvement or modification affects the exterior of the condominium unit, it “shall not unreasonably prevent passage by other residents of the condominium project.”
- If the co-owner makes an exterior improvement or modification, the co-owner “shall maintain liability insurance . . . naming the association of co-owners as an additional insured, in an amount adequate to compensate for personal injuries caused by the exterior improvement or modification.”
- The costs of maintenance, repair, and replacement of an improvement or modification exceeding that currently incurred by the association for maintenance, repair, and replacement of common elements covered by the improvement or modification “shall be assessed to and paid by the co-owner or the unit serviced by the improvement or modification.”
The Michigan Condominium Act also describes the process to be followed in submitting and reviewing a proposed improvement or modification. First, the co-owner submits plans and specifications to the association for the association’s review. MCL 559.147a(4). Second, the association then reviews the proposal to “determine whether the proposed improvement or modification substantially conforms to the requirements of [MCL 559.147a].” As suggested above, the association is prohibited from denying a requested improvement or modification “without good cause.” Id. This “good cause” requirement appears to be limited to those circumstances under which the applicant’s request does not meet one or more of the requirements contained in Subsections (1)-(3) of Section 47a.
If the association denies a request, the association must list, “in writing, the changes needed to make the proposed improvement or modification conform to the requirements” of MCL 559.147a. The association has sixty (60) days to review a proposal, and if the association does not approve or deny a request within sixty (60) days after the plans and specifications are submitted to the association, then the co-owner may make the proposed improvement or modification “without the approval of the association of co-owners.” If a co-owner disagrees with the denial of a proposal, then a co-owner has the right to file a lawsuit against the association and the officers and directors of the association to compel compliance with MCL 559.147a.
Finally, a co-owner who has made an improvement or modification under Section 47a must provide thirty (30) days’ notice to the association if the co-owner intends to move or rent the unit. The association then has the ability to require that the co-owner remove the modification or improvement.
Summary
Section 47a of the Michigan Condominium Act provides both substantive and procedural protections to co-owners who seek to modify or improve their units or the common elements of their condominium project in order to facilitate access to their unit, to facilitate movement within their unit, or to alleviate potentially hazardous conditions. These protections are in addition to the protections contained in the FHAA and the PWDCRA. An association who has received a request from a co-owner to modify or improve their unit or the condominium’s common elements should be aware of the substantive and procedural protections afforded to persons with disabilities in order to avoid violating the co-owner’s rights under the Michigan Condominium Act and to avoid liability for the wrongful denial of a co-owner’s request.
Matthew W. Heron is a Member of Hirzel Law, PLC where he focuses his practice on dispute avoidance, condominium law, commercial litigation, commercial real estate, land use, large contractual disputes and title litigation. He has extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. Mr. Heron concentrates his practice on drafting, revising, amending, restating and interpreting governing documents of condominium and homeowner’s associations in Michigan. He can be reached at (248) 480-8758 or mheron@hirzellaw.com. You can also follow him on Twitter at @mwheron75.
