If a Unit Owner who suffers from a disability which impairs mobility requests the installation of a ramp on the common elements, or some other structural modification to permit him/her the beneficial use and enjoyment of the property, is the Association obligated to comply?
As always, the legal answer is “it depends”. A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications are not limited to the interior of a condominium unit, they can include structural changes to interiors and exteriors of dwellings and to common and public use areas.
The Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status and disability. One type of disability discrimination prohibited by the FHA is a refusal to permit, at the expense of the person with the disability, a reasonable modification. As such, under the FHA, a community association cannot refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises.
To show that a requested modification may be necessary, there must be an identifiable relationship
between the requested modification and the individual’s disability. Further, the modification must be ‘reasonable’. Examples of modifications that are typically deemed reasonable include, but are not limited to, widening of doorways to accommodate persons in wheelchairs; installing grab bars in bathrooms; lowering kitchen cabinets; adding accessible ramps; altering/widening walkways to provide access to public or common areas.
Who is responsible for the cost of such modifications? While associations must permit the modification, the person who requests same is typically responsible for paying for the cost of the modification. Notwithstanding, the association may bear the burden of paying for the modification if the area sought to be modified was built in compliance with the design and construction requirements of the Fair Housing Act. Additionally, to the extent that a modification is made to common areas/elements that are normally maintained by the Association, then the Association would be responsible for the upkeep and maintenance of the modification.
How should requests for reasonable modifications be handled? A person with a disability must obtain the Association’s approval prior to making any modification. If the request meets the requirements under the FHA for a reasonable modification, the Association cannot deny the request. Please note that if the Association refuses to allow an individual to make a reasonable modification when such modification may be necessary to afford a person with a disability full enjoyment of the premises, the Association may be held liable pursuant to the Fair Housing Act. Additionally, the Association has the obligation to provide prompt responses to a reasonable modification request. An undue delay in responding to a reasonable modification request may be deemed a failure to permit a reasonable modification.
It is important for an Association to attempt to balance its responsibilities, being sympathetic and responsive towards a resident’s request for a reasonable modification and consulting with legal counsel immediately following receipt of a request for a modification.
Carolina Sznajderman Sheir is a partner at Eisinger Law She focuses her practice on real estate law, community association law, commercial litigation and developer representation and can be reached at 954-894-8000 x 238 or csheir@eisingerlaw.com.
Eisinger Law, is a full service Florida law firm focusing on community association law, real estate law, developer representation, commercial litigation, insurance law and estate planning. For more info visit eisingerlaw.com.
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