Every so often, a case comes across my desk that reminds me that many community associations still have a lot to learn. The saga of Bessie Jacobs v. Concord Village Condominium X Association is one of those.
Bessie Jacobs, 88, is a physically handicapped victim of polio who lives alone in the Concord Village Condominium in Tamarac, Fla., according to the opinion handed down in February by the U.S. District Court for the Southern District of Florida.
She moved into the condominium 22 years ago. To move around, she uses a motorized tricycle. She bought her condo 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."
Jacobs filed a suit 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 Jacobs be awarded attorneys' fees for having to bring the case.
The court set forth four basic elements that are necessary to prevail in such a lawsuit:
* The complainant suffers from a handicap. That includes: individuals with a physical or mental impairment that substantially limits one or more major life activities; individuals who are regarded as having such an impairment; and individuals with a record of such an impairment.
In this case, the court noted that not only did the association "acquiesce" to Jacobs's handicap for 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."
* The defendant knew (or should reasonably have known) of the handicap. The testimony was quite clear that the association was aware of the handicap for the 22 years that Jacobs owned and lived in her unit. Indeed, the judge stated, "Defendant's twenty years of silence on this issue speaks volumes."
* Reasonable 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 any changes. All that the association has to do is to allow the handicapped person -- at her own expense -- to do what is reasonably necessary to accommodate the handicap.
* The defendant refused to make such accommodation. Here, the court found that because the association allowed Jacobs to have a ramp for more than 20 years and now refuses to allow it to be replaced, this "supports Plaintiff's contentions that the Defendant acted intentionally to preclude the ultimate enjoyment of her condominium."
The court then ordered: "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 Jacobs no longer reside in the unit -- or should her doctor determine that she no longer needs the tricycle for medical purposes -- Jacobs, at her expense, would have the ramp removed and the floor restored to its original condition.
In my opinion, this is a case that should never have gone to court; the association's lawyer should be embarrassed it ever went this far. This case cost the association -- and its members -- a lot of money. It's a situation in which perhaps the members of the board of directors did not exercise good business judgment and perhaps should be held responsible for breaching their fiduciary duty.
Most members of association boards are hardworking and conscientious. Unfortunately, the few bad cases hit the media, and give the rest a bad reputation.
Several years ago, the Community Associations Institute published a booklet titled "Be Reasonable," written by Kenneth Budd. This should be required reading for every homeowner in a community association.
Budd's conclusion should be adopted as a preamble to every association's 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."
Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.