Question: I am disabled and have difficulties negotiating the step into my condominium. My therapist says a ramp is needed but my condominium said a ramp is not allowed because it is a material alteration to the common elements. Don't I have rights under the Americans with Disabilities Act or Fair Housing Act?
Answer: Usually, a material alternation to common elements or exterior of a condominium must be approved in accordance with provisions of the declaration of condominium or, absent provision of the declaration, as provided in Florida's Condominium Act. If the declaration does not provide a manner for material alterations of common elements, 75% of the total voting interests of the association must approve the alteration. In 1971, a Florida appellate court established the definition of material alteration as a change in form, shape, element or specification which is clearly or readily seen as affecting or influencing function, use or appearance. Installation of a ramp would normally fall within that definition. But, both Americans with Disabilities Act (1988) and the Fair Housing Act (FHA) trump Florida's Condominium Act and declarations of condominium when it comes to alteration required to reasonably accommodate a disability.
ADA and FHA are similar with respect to treatment of disabilities. But, they differ significantly in application.
ADA defines a disability as (a) a physical or mental impairment that substantially limits one or major life activities of an individual (b) a record of such impairment (c) being having such an impairment. Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrate, thinking, communicating and working.
The ADA applies to public accommodations and services operated by private entities available to the public. ADA focuses on government and businesses. It impacts a condominium when a condominium operates facilities that are open to the public such as rental of a club house or public bingo games on site.
Under the ADA, a public accommodation must make reasonable accommodations for a person with a disability. Regulations under the Act specify requirements for parking, access and other requirements. If accommodation is required, it must be provided at the expense of the business or government involved.
Most condominiums are not as a public accommodation because their facilities are limited to use by owners, tenants and guests. That means the ADA likely does not apply to a condominium. The Fair Housing Act takes a different approach.
The Fair Housing Act was enacted in 1968 as an amendment to Civil Rights Act. The original focus was to prohibit discrimination in sale, rental and financing of dwellings based on race, color, religion, sex and national origin. In 1988, the Act was amended to prohibit discrimination based on disability or marital status (children under 18 and pregnant women).
The Fair Housing Act addresses handicap instead of disability. Handicap is a physical or mental impairment which substantially limits one or more major life activity, record of having such impairment or being regarded as having such impairment. The Act applies to any dwelling intended for occupancy as a residence by one or more families and any vacant land which is offered for sale for the construction of a dwelling or dwellings. It is not limited to public accommodation it does apply to condominiums.
The Fair Housing Act requires housing providers, which includes a condominium association, to make reasonable accommodations for a person with a handicap to afford a handicapped person equal opportunity to use and enjoy a dwelling unit. Unlike accommodation under the ADA, the Fair Housing Act only requires the housing provider allow the reasonable accommodation and does not require it to pay for it. The owner requesting an accommodation can be required to pay for it and even pay for the design, permitting and required approvals.
Determination of reasonableness is done on a case by case basis. Generally, the minimal needed to accommodate the handicap is reasonable. The handicapped person is not entitled to unrestricted choice of how to accommodate his or her handicap.
The accommodation must be necessary to improve the owner's ability to deal with the handicap. For example, an owner may be entitled to a seeing eye dog if he is blind. But, in Bronk v Ineichen, the court agreed that deaf tenants are not entitled to a dog where the dog was not necessary as a hearing dog.
A condominium association is required to provide a reasonable accommodation for a handicap, but, your right to the accommodation may be limited by law. If your association is unwilling to accommodate you, you should retain an experienced attorney who can give you advice in circumstances of your case. If the association is in violation of the Fair Housing Act, the court can award damages, attorney fees and costs. If the association action is particularly egregious, the court can also award punitive damages. There is a two year of limitations so prompt action is necessary.