Condominium Abuses - A Continuing Saga - 6/1/2004 - Condominiums Townhouses Cooperatives

Condominium Abuses: A Continuing Saga
by Benny L. Kass

Every so often, a case comes across my desk which reminds me that many community associations still have a lot to learn. The saga of Bessie Jacobs v. Concord Village Condominium X Association is a case in point.

Bessie Jacobs -- according to the Opinion handed down by the United States District Court for the Southern District of Florida on February 1, 2004 -- is an eighty-eight year old, physically handicapped victim of polio, who lives alone in the Concord Village Condominium in Tamarac, Florida.

She moved into the association 22 years ago. To relieve her pain, she uses a motorized tricycle. She bought her unit directly from the developer, who built a plywood ramp so that she could store her tricycle and recharge its battery in a closet on the ground floor, which is four inches above the floor.

About two years ago, the ramp disappeared. According to the Court, "a new ramp was constructed and it too soon disappeared. The Association then locked the door to the storage closet, refused to allow Ms. Jacobs to have another ramp installed, and denied her access to her tricycle in the storage closet."

Ms. Jacobs filed a lawsuit seeking a permanent injunction against the Condominium Association. She also claimed that the Association was intentionally discriminating against her in violation of the Federal Fair Housing Act. That Act prohibits discrimination in housing (including condominium associations) on the basis of race, color, religion, sex, national origin, familial status, and disability. One type of disability discrimination prohibited by the Act is the refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.

The Court found that the Association was in violation of the Act, issued a permanent injunction against the Association, and also directed that Ms. Jacobs be awarded attorneys fees for having to bring this case.

The Court set forth the four basic elements which are necessary to prevail in such a lawsuit:

1. The complainant suffers from a handicap, which includes: (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment.

   In this case, the Court noted that not only did the Association "acquisce" to Ms. Jacob's handicap for the past 22 years, but "at no time has the Defendant requested any additional medical evidence of" her handicap. Accordingly, "Defendant is now estopped from contesting whether Ms. Jacobs is physically handicapped and whether Ms. Jacobs physical impairments and disabilities limit her major life activity of walking."

2. Respondent knew (or should reasonably have known) of the handicap. The testimony was quite clear that the Association was aware of the handicap for the past 22 years that Ms. Jacobs owned and resided in her unit. Indeed, the Judge stated that "Defendant's twenty years of silence on this issue speaks volumes."
3. Accommodation of the handicap may be necessary to afford complainant an equal opportunity to use and enjoy the dwelling. The key words here are "reasonable accommodation". According to the Court, "the accommodation of a small plywood ramp bolted to the floor so that it cannot be easily stolen, particularly after having one for 20 years without incident, is eminently reasonable."

   It should also be noted that "reasonable accommodation" does not mean that the Association has to pay for these costs. All that the Association has to do is to allow the handicapped person -- at her expense -- to do what is reasonably necessary to "accommodate" the handicap.

4. Association refused to make such accommodation. Here, the Court found that since the Association allowed Ms. Jacobs to have a ramp for more than 20 years and now refuses to allow it to be replaced "supports Plaintiff's contentions that the Defendant acted intentionally to preclude the ultimate enjoyment of her condominium..."

   The Court then ordered the following:

   Defendant is permanently enjoined from prohibiting the Plaintiff to install, by securely bolting to the concrete floor, a plywood (or other suitable material) ramp so the Plaintiff can freely store, access, and charge her motorized tricycle in the storage closet on the first floor of the Defendant's building ... Defendant shall further provide the Plaintiff with a key to the storage closet.

   Finally, the Judge required that should Ms. Jacobs no longer reside in the unit -- or if her doctor determines that she no longer needs the tricycle for medical purposes -- that Plaintiff (at her expense) shall have the ramp removed and the flooring area restored to its original condition.

In my opinion, this is a case which should never have gone to Court. This is a case which gives columnists such as myself great articles to write. This is a case which cost the association -- and its members -- a lot of money. This is a case where perhaps the Board of Directors did not exercise good business judgment and perhaps should be held responsible for breaching their fiduciary duty. And, from the facts as I understand them, this is a case in which the Association's attorney should be embarrassed for allowing it to be brought.

Most association members of Boards of Directors are hard working and conscientious. Unfortunately, the few bad cases hit the media, and give the rest of the associations a bad reputation.

Several years ago, the Community Associations Institute published a booklet entitled Be Reasonable, written by Kenneth Budd. This material should be required reading for every homeowner in a community association.

Mr. Budd's conclusion should be adopted as a preamble to every association Bylaws. He writes:

It's time for associations to write responsible rules and review existing restrictions. To eliminate restrictions that are outdated and illogical, and to address specific problems with clear, specific solutions. To realize that overzealous, unreasonable boards of directors can be more damaging to property values than the violations they so vigorously try to prevent. It's time to be reasonable.