The Fair Housing Amendments Act (FHAA) require condominium associations to make reasonable accommodations to disabled co-owners under certain circumstances. However, condominium associations should keep in mind that co-owners are not entitled to every accommodation that is requested. Rather, co-owners are only entitled to accommodations that are necessary to ameliorate the effects of a disability as was the case in Phillips v Acacia on the Green Condo Ass’n, unpublished opinion of the United States District Court for the Northern District of Ohio, issued October 7, 2020 (Case No. 19-cv-1277). In Phillips, a federal court held that two co-owners were not entitled to an accommodation that would permit them to place a grill on their balcony, in violation of the condominium’s rules, because the requested accommodation was not necessary to accommodate their disabilities.
Facts
Gene B. Phillips, and Stephen G. Weiss, challenged their condominium association rules that banned private grills on patios and condominium balconies. The condominium contained 273 units in two multi-family buildings, and offered several amenities to co-owners, including a common pavilion with grills, a pool, and an underground garage. The condominium association banned personal grills due to increased risk of a fire hazard, smoke, pest, and odor concerns.
Weiss first sought permission to use a grill on his patio in 2013, explaining that he would use it in conformity with fire codes, but this request was rejected based on the condominium rules. Weiss later renewed this request, but his subsequent requests did not include a request for a reasonable accommodation until 2018. In 2018, Weiss claimed that his 2016 lymphoma and immune deficiency diagnoses entitled him to use a grill due to mobility issues. Id. at 4. The facts behind Weiss’ alleged disability were as follows: he did not use a cane and walked to his car in an underground garage, a distance which Weiss estimated to be about the same distance as from his unit to the pavilion; he visited the pavilion ten times in 2019; his immunologist in a letter opined that Weiss’ diseases affected his ability to walk; and Weiss stated that his diagnoses and medical treatments caused him to periodically suffer from extreme exhaustion to the point that he had difficulty walking more than a few steps in his condominium unit. Id.
With respect to Phillips, for many years, she thought the condominium association’s ban on personal grills was “arbitrary.” In 2018, after speaking with Weiss, Phillips submitted a request for her own grill because she “‘finally got aggravated and said enough is enough’”. Id. Like Weiss, Phillips’ first request did not make mention of any disability. Her second letter, however, claimed a disability based on substantial pain from walking due to diagnoses of arthritis and chronic pain syndrome. Id. Notwithstanding her pain from walking, however, Philips would walk to the pool almost daily in the summer to swim. The pool was adjacent to the pavilion where the grill was located. Accompanying this second request, Phillips submitted a letter from her physician, who opined that she had “‘difficulty walking any prolonged distances while using a cane while carrying food and supplies for outdoor cooking.’” Id. In response, the board of directors for the condominium agreed to accommodate the request by having a shopping cart brought to her unit to push supplies to the pavilion, and also to assist her in pushing the cart to the pavilion, if needed. Phillips rejected this offered accommodation as unreasonable as she would still have to walk the distance to the pavilion. Id.
The Condominium Association Properly Denied the Request for a Reasonable Accommodation Under the Fair Housing Act
The case of Phillips illustrates how reasonable accommodation requests must be assessed on a case-by-case basis. The legal standard that the Phillips Court reviewed the disability discrimination claims required that the co-owners show that (1) they suffer from a qualifying disability, (2) the condominium association knew or reasonably should have known of the disability, (3) the requested accommodation was necessary for equal opportunity to use and enjoy the condominium, (4) the accommodation is reasonable, and (5) the condominium association refused to make the accommodation¹ Id. at 3.
In suing the condominium association, the co-owners alleged that the denial of reasonable disability accommodations was discriminatory and caused disruption to their use and enjoyment of their units, also causing great emotional distress. Id. at 5. Analyzing Phillips’ claim, the Court determined that she did not show necessity and that the condominium association’s accommodation was a reasonable offer. Id. at 7. The Court critiqued Phillips’ claim that she could not walk to the pavilion, characterizing it as a matter of preference rather than inability to walk the distance, because the distance was the same as to the pool that she frequented in the summer. The Court also considered her physician’s opinion that she had “difficulty walking prolonged distances without a cane” rather than noting that she could not walk the distance. Id. Moreover, the condominium association’s proffered accommodation was indeed one of the physician’s recommendations to accommodate Phillips. Id. The Court explained that the FAA standard does not require a requestor’s “particular accommodation,” only one that is reasonable. Id. at 7 (citations omitted).
Turning to Weiss, the Court found that he also insufficiently alleged disability discrimination claims for his disability. Like Phillips, there was evidence that Weiss was able to walk other distances—in his case, he was able to walk to the garage, which was similarly distanced as the pavilion from his unit. Id. at 8. Its considerations were two-fold: analyzing when Weiss was able to walk the distance to the pavilion, the Court viewed his request for a personal grill as not necessary. When Weiss was suffering from extreme exhaustion and inability to walk, a personal grill was not helpful to mitigate the effects of his handicap because on those days, Weiss was only able to walk a few steps inside his condominium unit. Id.
Conclusion
Condominium associations must comply with federal law and analogous state and local laws pertaining to Fair Housing. As made evident in the Phillips decision, evaluating requests for reasonable accommodations is highly fact-specific and condominium associations must carefully evaluate whether each request for a reasonable accommodation is appropriate. To ensure that how your association handles these requests is not violative of the Fair Housing Act, consult your condominium association’s attorney for guidance in navigating potential issues when reviewing a disability request to mitigate the risk of a costly lawsuit based on a failure to accommodate the disability, including whether there is a qualifying disability, whether a particular accommodation is necessary, whether a proposed accommodation is reasonable, whether a denied request was valid, and whether the request was evaluated in conformity with federal and state laws.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC. He concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association law 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. Mr. Hirzel has been recognized as a Michigan Super Lawyer’s Rising Star in Real Estate Law by Super Lawyers Magazine, a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine, and as a Best Lawyer in Real Estate Law by U.S News and World Report’s Best Lawyers Publication. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 986-2290 or kevin@hirzellaw.com.
[1] “Discrimination” is defined as “[a] refusal to make reasonable accommodations in rule, policies, practices, or services, when such accommodations may be made necessary to afford such person equal opportunity to use and enjoy a dwelling[.]”
