Michigan Condominium Association found not liable for violating the Fair Housing Act and PWDCRA in request for handrail
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 Michigan Persons with Disabilities Civil Rights Acts, (PWDCRA), MCL 37.1101 et seq. 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).
In the companion case of Kooman for Estate of Romig v Boulder Bluff Condominiums, Units 73-123, 125-146, Inc, No. 1:18-CV-637, 2020 WL 616352, at *1–12 (WD Mich, February 10, 2020), the Western District of Michigan dismissed the plaintiffs federal court claims, alleging violation of Federal Fair Housing Act Amendments, specifically, 42 U.S.C. § 3604(f)(3)(A). The federal court held that the condominium association ultimately approved the request to install the railing and that waiting two (2) months to approve the request, after initially requesting additional information to evaluate the modification request, did not constitute a denial of the request for a reasonable accommodation under the Fair Housing Act.
In 2009, Terry Romig (“Terry”), and her ex-husband, Robert J. Romig, (the “decedent”) (the “plaintiffs”) purchased a unit in the Boulder Bluff Condominium. Robert Romig was disabled and had limited ability to stand and walk. In June 2016, the plaintiffs submitted a request for an accommodation to the condominium association’s management company seeking permission to install a railing on the front porch and adjacent stairs of their condominium unit.
At the request of management company, Terry provided additional information regarding the coverage and location of the railing, the installer, and the method of attachment of the railing to the porch. Terry also advised that installation could occur “around July 4.” While waiting for a decision from the board of directors, the decedent fell down the stairs and was hospitalized. Terry informed the management company and the board of directors of the decedent’s fall. On July 1, 2016, the management company notified Terry that the condominium association denied the modification request. The condominium association denied the request because “the proposed railing would be a permanent change modifying the overall appearance of the unit in comparison to the rest of the association as well as the installation would cause damage to the concrete porch.”
In a letter dated July 28, 2016, counsel for Terry and the decedent advised the condominium association that it did not comply with their bylaws because the denial failed to advise of the changes necessary to permit the proposed improvement. On August 20, 2016, the decedent fell a second time while attempting to maneuver the front porch stairs. Once again, he was hospitalized for this fall. In a letter dated August 23, 2016, the management company advised Terry that her request to install a railing on the front porch adjacent to her unit was approved and delineated the specifications for the installation. On January 31, 2017, the decedent died.
State Court Case
The plaintiffs filed a three-count complaint against the condominium association and management company alleging that their delay or refusal to allow the disability modification discriminated against the decedent. In counts I and II of the complaint, the plaintiffs alleged violations of MCL 37.1502(1)(b) and 37.1506a(1)(a) of the PWDCRA. MCL 37.1502 prohibits certain discriminatory acts and provides in relevant part as follows:
(1) An owner or any other person engaging in a real estate transaction, or a real estate broker or salesman shall not, on the basis of a disability of a buyer…
(b) Discriminate against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction.
MCL 37.1506a also prohibits certain discriminatory acts and provides in relevant part as follows:
(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….
The PWDCRA, specifically MCL 37.1501(d), defines a “real estate transaction” as “the sale, exchange, rental, or lease of real property, or an interest therein.”
Based on the above definitions, the Court of Appeals held that plaintiffs’ claims under the PWDCRA failed as a matter law as they occurred after the plaintiffs purchased the home and the alleged discrimination did not take place within the context of a real estate transaction. Specifically, the Court held that:
In this case, the alleged discrimination did not have a relationship in fact with a real estate transaction because the alleged discrimination did not pertain to the (1) “sale … of real property, or an interest therein,” (2) “exchange … of real property, or an interest therein,” (3) “rental … of real property, or an interest therein,” or (4) “lease of real property, or an interest therein.” MCL 37.1501(d). Additionally, defendants did not allegedly discriminate against the decedent “in the terms, conditions, or privileges of a,” (1) “sale … of real property, or an interest therein,” (2) “exchange … of real property, or an interest therein” (3) “rental … of real property, or an interest therein,” or (4) “lease of real property, or an interest therein.” MCL 37.1501(d). Instead, the alleged discrimination occurred years after Terry purchased the home and after the decedent began residing in the home.
The Court applied the same logic in its analysis of the claim under MCL 37.1506a(1)(a), concluding that a “real estate transaction” under the PWDCRA could not take place years after a purchase. However, the Court noted that the Michigan condominium Act, specifically, MCL 559.147a, may provide relief for a post-sale denial of a disability related request to modify the common elements of a condominium. MCL 559.147a(1) provides in pertinent part:
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 in or regularly visit with unit, or to alleviate conditions that could be hazardous to persons with disabilities who reside in or regularly visit the unit.
In interpreting the Michigan Condominium Act, the Court of Appeals held that:
MCL 559.147(a)(1) expressly affords persons with disabilities the right to make improvements or modifications to facilitate access to or movement in the unit. It contains no express limitations or correlation to a “real estate transaction” or the timing of the sale or purchase. Thus, the Legislature’s confinement of housing provisions in the PWDCRA to “real estate transactions” does not preclude subsequent legal action after a disabled person completes the real estate transaction in light of MCL 557.147a, and we will not extend the application of the PWDCRA beyond real estate transactions because it would serve the rationale purpose of protecting a disabled person.
Accordingly, the Court affirmed the dismissal of plaintiffs’ claims under the PWDCRA. The Court also noted that plaintiffs failed to seek summary disposition on Count III of its complaint, which alleged a violation of MCL 559.147a. However, the remedy afforded by MCL 559.147a(4) is as follows:
A co-owner may bring an action against the association of co-owners and the officers and directors to compel those persons to comply with this section if the co-owner disagrees with a denial by the association of co-owners of the co-owner’s proposed improvement or modification.
Given that condominium association ultimately permitted the co-owner to install a hand railing, it is unclear what relief, if any, the plaintiffs could obtain under the Michigan Condominium Act based on the facts of this case.
Federal Court Case
Plaintiffs also filed a companion case in federal court in the Western District of Michigan alleging violations of the Federal Fair Housing Act. In Kooman for Estate of Romig v Boulder Bluff Condominiums, Units 73-123, 125-146, Inc, No. 1:18-CV-637, 2020 WL 616352, at *1–12 (WD Mich, February 10, 2020), the Hon. Robert Jonker dismissed the federal court complaint as it concluded that the condominium association granted the plaintiffs’ request to install a hand railing in a timely manner. Specifically, the federal court held that:
Prohibited discrimination under the FHAA includes “a refusal to permit … reasonable modifications of existing premises occupied or to be occupied” by a disabled individual “if such modifications may be necessary to afford such person full enjoyment of the premises[.]” 42 U.S.C. § 3604(f)(3)(A). “An FHA reasonable-modification plaintiff … must prove both the reasonableness and necessity of the requested modification.” Hollis v. Chestnut Bend Homeowner’s Ass’n, 760 F.3d 531, 541 (6th Cir. 2014)….The gravamen of Plaintiffs’ claim is that the Board acted unreasonably in taking until August 23, 2016 to approve Ms. Kooman’s request.
Agency regulations require a housing provider to give “prompt responses to a reasonable modification request.”… Therefore, “undue delay in responding to a reasonable modification request may be deemed a failure to permit a reasonable modification.” Id. at 826 (citation omitted). “But a duty to respond to a request is not necessarily the same as a duty to grant or deny it immediately.” Moody v. Gongloff, 687 F. App’x 496, 499 (6th Cir. 2017). There must be a reasonable time for a housing provider to act on any request for modification before undue delay might be found. The period between the June 17th request and the August 23rd approval was not unreasonable.
The federal court concluded its order of dismissal as follows:
This case is actually a success story in a Board’s reasonable accommodation of a resident’s disability. In just two months from the initial contact, the Board approved the requested railings. During that two month process, the interactive process moved from an initial nebulous request, unsupported by any medical documentation, that the Board found inadequate. The homeowner responded with additional information, including a doctor’s note and specific medical details. The Board promptly approved the modification and the homeowner installed the railing.
All that was in place no later than the late summer or early fall of 2016. Then, out of the blue nearly two years later, Plaintiffs sued and alleged the Fair Housing claims. At the Summary Judgment hearing, it appeared that the primary concrete damages Plaintiffs have to assert are the attorney fees and costs the Plaintiffs’ lawyers incurred during this litigation itself. That is not the way the Fair Housing Act is supposed to work.
The above opinion demonstrates condominium associations can engage in an interactive process when evaluating requests for reasonable accommodations under the Fair Housing Act. Accordingly, a condominium association’s requests for additional information, when a co-owner fails to provide medical documentation to demonstrate their disability, will not be considered a denial of a request for a reasonable accommodation under the Fair Housing Act.
Both the state and federal court cases contain important takeaways for Michigan condominium associations when evaluating requests for reasonable accommodations to modify the common elements on the basis of disability. Specifically, the lessons to be learned are as follows:
- The Michigan Persons with Disabilities Civil Rights Acts, (PWDCRA), MCL 37.1101 et seq does not apply to a co-owner’s post-sale request to modify the common elements of a condominium based on a disability related need.
- The Michigan Condominium Act, specifically, MCL 559.147a, provides the applicable framework that Michigan condominium associations must follow in evaluating a post-sale request for a co-owner to modify the common elements based on a disability related need. Condominium associations should also be aware that MCL 559.147a provides a 60-day timeframe to approve or deny requests to modify the common elements based on a disability related need.
- Under the Fair Housing Act, 2 months is not an unreasonable period of time for a condominium association to approve a co-owner’s request for a reasonable accommodation. Condominium associations are permitted to request verification of a disability and requesting information to demonstrate a co-owner’s disability will not constitute a denial of a reasonable accommodation.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He is also a member of the Community Associations Institute’s (“CAI”) National Board of Trustees. Mr. Hirzel has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2020, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel has been named a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine from 2018-2020, an award given to less than 5% of the attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or [email protected].