By Michael J. Gelfand, Esq. / Published May 2016
As most community association participants now know, the Fair Housing Act prohibits discrimination against an owner or tenant based on a handicap. So how do you know when a handicapped person requested an accommodation? Can you be held liable if you did not know a request has been made? Maybe so.
A Federal appellate court recently reversed a trial court’s dismissal of a discrimination case, holding that the minimal allegations were sufficient to proceed against the owner of an apartment complex. Discrimination alleged to be based upon the Plaintiff’s son’s Down syndrome was at issue in Hunt v. Aimco Properties, No. 14-14085, (11th Cir., February 18, 2016). The decision indicated that since November 2006, Dyan Hunt and her son Karl lived in an apartment owned by Aimco Properties. In August 2012, Hunt was told that Karl, who was then 21 but acted like a seven-year-old, drew a map of the property, telling the property manager that Karl was going to sacrifice the property manager and another employee and then trap all the residents in their apartments and set the property on fire.
After the office staff complained to Aimco’s corporate office that they did not feel safe, a deputy from the Palm Beach County Sheriff’s Office spoke with Karl about the threats to the office staff. The deputy informed Karl that he should stay away from the community clubhouse and office or he would be arrested. Hunt informed the property manager that she was looking for a place for Karl to stay during the day while she was at work.
Soon thereafter, Hunt was informed that her lease would not be renewed. But, before the Hunts vacated the apartment, a new management company took over and determined that Karl was not a threat, allowing the Hunts to remain. Nevertheless, Hunt sued Aimco, alleging Aimco violated the Fair Housing Act by refusing to renew Hunt’s lease and by failing to accommodate Karl Hunt’s disability. The trial court granted Aimco’s motion to dismiss the action.
The Federal appellate court reversed the trial court’s decision to dismiss the case. The court explained that “it is not necessary to state in the complaint … that the housing remained available or was secured by an individual outside of the protected class. But a complaint must allege that the adverse action was taken because of a disability and state the facts on which the plaintiff relies to support that claim.” The court concluded that Aimco placed conditions on Karl that were not placed on other residents by prohibiting Karl from entering the community room, the pool area, and the office.
So what does a Florida community association do? It does seem that associations are placed in an untenable situation. Even the court recognized that it is not always easy to determine whether an accommodation has been requested by an owner or a tenant.
But, the court did place the onus upon the apartment complex, not the requesting owner. If the apartment complex could have determined that the tenant sought an accommodation, then the complex should have made further inquiry to confirm if an accommodation was sought.
The court agreed that “circumstances must at least be sufficient to cause a reasonable [housing provider] to make appropriate inquiries about the possible need for an accommodation.” But that concession may not be practical taking into account the court’s ruling. The court concluded that Hunt sufficiently alleged that she sought an accommodation. This leaves associations without a clear specific request triggering a duty to inquire. Thus, communities seemingly must be on guard.
The “catch-22” is realizing when a person has made an accommodation request. The court appears to place the onus on the association to investigate when there is an inkling of a request by anyone with a disability.
Initially, this decision would appear to place associations, their officers, directors, and managers at significant disadvantage. Previously, regulators discouraged associations from inquiring as to a person’s disability. The situation is further complicated when the requestor may not be perceived to be making a request in good faith!
Now it appears that an association must constantly evaluate the situation to determine if an accommodation request was intended to be made. If the situation is unclear, the association must initiate further communications, asking questions to clarify if there is a request. If it appears that there is a request, then the association must ask further questions to help the requestor proverbially prove their request.
Some larger communities have revised staff training, even inviting officers and directors to learn how their communities must initially respond to a request, and follow up. This training may be valuable for all sizes of communities.
Communities may want to consider revising their rules to channel communications regarding accommodation requests. In the past, many communities had avoided express handicap accommodation rules to not encourage what was perceived as a waiver of requests that may not have been justified. This decision may provide cause to reconsider what rules are adopted.
The risks of non-compliance with the law are high. There are risks to an association, generally, and to those individuals making or avoiding decisions. When these situations arise, most clients have found it valuable to immediately contact their association’s counsel, early before a situation gets worse.
“It ain’t over till it’s over!” Yogi Berra’s immortal quote from the 1973 Mets’ season certainly applies to community association-related bills in the Florida Legislature.
This year community association law proposals have come and gone, twisted and spun, with an intensity and velocity that would challenge any thrill seeker on a roller coaster at Six Flags, Universal, or Busch Gardens! The speed approaches supersonic levels. You can almost hear the sonic booms out of the Capital!
As of press time, matters are still in considerable flux. This provides a quick overview of status at press time. Unless stated otherwise, all proposals if adopted and signed into law would apply to Florida condominium and homeowners associations with an effective date of July 1, 2016. Because of the uncertainty of adoption, the proposals are listed by topic.
Amendments (HOA). SB 792/HB 1357/SB 1716 would change the method of amending homeowners associations governing documents, including recording requirements similar to the Condominium Act and limiting amendments restricting lease duration and frequency.
Assessment Collection. HB 1357 would limit collection activities, including the following: prohibiting third parties from collecting delinquent assessments except when the governing documents include a written collection policy that corresponds to six mandated points; limiting the transfer of assessment collection rights; prohibiting collection efforts unless there is a good faith effort to negotiate a payment plan for at least six months; and prohibiting foreclosure actions unless the board of directors vote to authorize—if there is no vote, then a penalty shall be levied in the form of attorney’s fees.
Electric Vehicles. SB 786 would allow an owner to install at his or her expense, after obtaining approvals, a reasonable re-charging station for the owner’s vehicle.
Elevators. HB 1289 would limit the physical spacing between a hoistway face and hoistway edge for elevators serving private residences.
Estoppel Letters. HB 203/SB 722 would require associations to provide estoppel letters within ten days of receipt of a request, whether in writing, orally, or electronically. Responses must follow a spec-ific format, including a guarantee that the information is valid for thirty days. Association charges are capped at $250, except for expedited requests.
MRTA. HB 7031 would revise and provide exceptions to the applicability of the Marketable Record Title Act to homeowners associations’ covenants, and would extend the authority to revitalize covenants.
Playgrounds. SB 406 would mandate safety standards for playgrounds, including those serving a private community.
Records. HB 1357/HB 1405/SB 1232 similarly address official records requirements, including retaining bid specifications and e-mails. Financial records are broadly defined to include “any records that identify, measure, record, or communicate information.” When responding to a request for records by an owner, the association may charge reasonable attorney’s fees in connection with the response. Condo-minium associations of more than 500 units and homeowners associations of more than 7,500 units are required to post financial information on websites with protected member access. Failure to provide annual financial statements on a timely basis to members would require an association to deposit the financial statement with the Department of Business and Professional Regulation, and that association would be prohibited from waiving the requirements of preparing detailed financial statements for two years. The 50 unit exemption from financial reporting requirements would be repealed.
Regulatory Oversight (HOA). SB 1122/SB 653/SB 1502 would authorize regulation of homeowners associations by the Department of Business and Professional Regulation in the same manner as condominium associations, including a $4.00 per parcel fee.
Transition/Turnover. SB 1526 would amend the Homeowners Association Act, §720.307(5), rescinding the current limitation on applicability of transition/turnover requirements to new communities.
Yard Trash. Last, but not least, SB 1214 seeks to authorize homeowners associations to establish community burn plans for yard trash, and authorize rulemaking by the Florida Forest Service of the Department of Agriculture and Consumer Service.
The situation literally is changing daily, even as this is published. Because of the division of the legislature, many pundits assert that there will be little if any chance of significant community association-related bills being approved by the legislature and being signed into law. For up-to-date information, check out Online Sunshine at www.leg.state.fl.us, or call your community association attorney.
Michael J. Gelfand, Esq.
Senior Partner of Gelfand & ARPE, P.A.
Michael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and how to effectively achieve those goals. Gelfand is a Florida Bar Board Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at firstname.lastname@example.org or (561) 655-6224.