Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: I am 85 years old and handicapped, which requires me to walk with a walker. It is very hard for me to get around and I can walk only for short distances. I have a handicapped license plate but the handicapped parking spaces at our condo complex are located at the clubhouse building and are too far for me to walk to and from my building.
At my condo, we all have assigned parking spaces at our building. My assigned parking space is too far for me to walk to. I had an arrangement to swap spaces with a neighbor who has a closer space to the entrance and no longer drives. I have asked the condo association board to assign that parking space to me permanently because of my mobility problem. My neighbor wrote a note to the board stating she was agreeable to this swap. The board refused to allow this, stating that in our documents everyone was assigned a parking space, and it would be illegal to swap spaces. There is a precedent for this because the previous board changed parking spaces for residents. I am concerned that if it is not official and my neighbor sells her condo, the new resident may not want to swap with me.
It is my understanding that the FHA requires reasonable accommodations and modifications of housing for individuals with disabilities. Condo associations must make necessary adjustments to policies or practices when requested by residents who have disabilities that might hinder their use of the condo.
Am I correct that this would apply to providing me with a parking space that is close to the entrance to the building so that I can access my car to get to my medical appointments? What recourse do I have to officially have this parking space designated for me? Signed, D.A.
Dear D.A.,
I am sorry to hear about your mobility issues. As you stated, the Fair Housing Act requires housing providers like condominiums to make reasonable accommodations of their rules and procedures when necessary to afford a disabled person the full use and enjoyment of the premises. And there are many situations where such accommodations apply to parking.
As a baseline matter though, we need to talk about how parking works in most condominiums. Usually, parking spaces are assigned to units as appurtenances. That means they are attached to the assigned unit, and pursuant to the Condominium Act they can only be transferred if that right is provided for in the declaration of condominium. Otherwise, they are attached to the original unit forever.
Your neighbor is willing to allow you to use her parking space. That alone shouldn’t be any problem at all — even if the association has a rule prohibiting one owner from using another owner’s parking space, it will have an obligation to accommodate that rule if necessary for you, as a disabled person, to enjoy the property. And it doesn’t sound as if the use of the space alone is the board’s issue.
Instead, I gather that the board is saying your declaration of condominium doesn’t allow owners to transfer their parking spaces. The question then is does the board need to accommodate that rule and allow you to take ownership of your neighbor’s space? I think that’s a lot less certain.
You don’t need to own your neighbor’s parking space to accommodate your disability — you only need to own that space to ensure that your accommodation lasts through a theoretical sale of her unit, which may or may not ever occur. And there are ample cases suggesting that improperly transferred appurtenances can be returned to their original unit even long after the transfer. Essentially, the inability to take ownership of your neighbor’s space isn’t currently impeding your ability to enjoy the property — and so the accommodation isn’t needed. Plus, I do not think that prior boards allowing such transfers would allow a current transfer. Instead, if those earlier transfers were also prohibited by your documents, they could theoretically be undone in the future. This isn’t a situation where a prior violation creates an argument that the rule can be ignored, today.
With that said, your right to an accommodation will exist even if your neighbor were to sell her unit in the future. So, while you wouldn’t be entitled to use her parking space, the association would be obligated to grant you an unused parking space (such as a guest space) if such a space were available. I think that is the most likely future solution if your neighbor’s space is no longer available.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Can a condo board deny a parking space swap?
Reporting by Ryan Poliakoff, Special to the Palm Beach Post / Palm Beach Post
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By Ryan Poliakoff, Special to the Palm Beach Post | USA TODAY Network
