What is the best way to handle a disabled resident requesting a driveway extension that violates our documents?
Here’s a quick fact pattern… An association receives a request for a driveway extension because an occupant of the home is disabled and needs a larger driveway for mobility. The owner provided a detailed letter from a physician to support this request. Does an association have to allow the driveway extension under the law? Short answer: YES.
The Federal Fair Housing Act (FHA) prohibits discrimination based upon a person’s disability. An individual with a disability is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment. Here, according to the facts, a physician stated in writing that the resident (1) has a disability; (2) resides at the property address in the Association; and (3) needs the driveway/paver modification to have access to the entire driveway for mobility.
Discrimination is the treatment of an individual based on their membership in a certain group or category. It involves excluding or restricting members of one group from opportunities that are available to other groups. Discrimination can occur when the community association fails to allow an “accommodation” to the community governing documents or “reasonable modification” to the community’s common elements. “Reasonable Accommodation” is an alteration to or variance of the association’s covenants, rules, regulations, policies, and services to provide the disabled equal use and enjoyment of his/her home.
Based upon the information provided to me, it is my legal opinion that the association should make a “reasonable accommodation” under the Fair Housing Act to the association’s documents to allow the driveway extension. If the Association refuses to allow these changes, the Association would open itself up to liability for discriminating against the resident, and, the association could be subject to a Fair Housing Act lawsuit for this discrimination. For more information on this matter review our Cheat Sheet entitled Federal Laws for Community Associations.