U.S. v. Avatar Properties, Inc., 2015 WL 2130540 (D. New Hampshire 2015) is a little case with a big reminder: condominium and homeowners associations fail to accommodate disabilities at their own risk. The law isn’t perfectly settled, but it is safe to say based on this and other cases that ignoring an accommodation request is probably not a good idea.
The facts are straightforward. The plaintiff was disabled and had difficulty with stairs. The parking space assigned to his unit was a flight of stairs away from the unit. There were, however, visitor parking spots on the same level as his unit. He asked twice to be allowed to use visitor parking, but each request was denied without any offer of an alternative. After moving out the plaintiff filed a complaint of discrimination with HUD, which eventually sued under the provisions of the Fair Housing Act concerning disability discrimination.
The legal issue concerned whether any part of the FHA applied to conduct of the condominium association after the unit was sold. Based on a few earlier cases, notably Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, 388 F.3d 327 (7th Cir.2004), the Association argued that the FHA forbids discrimination in the sale and rental of housing, but not in conduct after the sale. Citing other cases, including The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 698 (9th Cir. 2009), the District Court disagreed, finding that the FHA could apply to post-sale claims.
In my view the Association relied on a defense that never made much sense. Halprin and City of Medesto were claims under 42 U.S.C. §3604(a) for discrimination based on religion and race respectively. Avatar Properties, on the other hand, concerned disability discrimination under 42 U.S.C. §3604(f). Subsection (f), unlike subsection (a), specifically defines discrimination to include a failure to make reasonable accommodations in policies, practices and services, and specifically includes current residents. It is hardly surprising that any number of district courts have refused to dismiss claims under 42 U.S.C. §3604(f) despite the fact that the conduct took place after a purchase or rental.
There are two lessons here for property managers and condominium or homeowners associations. First, it is never a good idea to simply refuse a request for accommodation. In this case I’m confident one thing that interested HUD was the failure of the Association to propose any alternative means for the plaintiff to reach his condominium unit. HUD’s regulations and the cases encourage a dialogue before denial of an accommodation, and a flat refusal is likely to attract attention.
Second, condominium associations and their lawyers have to understand that disability discrimination is not like other forms of discrimination, and that the case law on race or religious discrimination may not apply to disability discrimination. The fact that the District Court took Halprin seriously enough to discuss it in depth indicates that there is at least a superficial appeal to the idea that the FHA does not cover conduct after sale. In the end, however, I doubt that Halprin and similar cases involving discrimination based on race or religion will succeed in limiting the application of Section 3604(f) to conduct after sale.