How to Handle Disability-Related Requests for Parking Accommodations
In this month’s lesson, the focus is on parking. Fair housing law bans discrimination based on disability, including refusing to grant requests by individuals with disabilities who need an exception to your parking policies as a reasonable accommodation so they may use and enjoy their homes.
Though fair housing rules haven’t changed much over the years, they’re a frequent source of confusion, according to fair housing attorney Terry Kitay. At her fair housing training sessions, Kitay says she’s often asked about parking requirements—most of which boil down to two questions: How many accessible spaces do we need, and what should we do with disability-related parking requests?
Those are two separate questions, Kitay says. The answer to the first can be tricky because it depends on the community’s date of construction, source of funding, and state where it’s located. But, she says, the answer to the second is easy: In nearly all cases, it’ll be reasonable to grant the request under fair housing law.
In this lesson, we’ll answer these questions in more detail. We’ll start off by reviewing fair housing law, the primary law that governs parking at multifamily rental communities. Then we’ll give you seven rules to help you avoid fair housing trouble when handling disability-related requests for parking accommodations. Finally, you can take the Coach’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The federal Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, and disability.
Under the FHA, it’s unlawful to discriminate against applicants or residents because they—or someone associated with them—have a disability. Fair housing law broadly defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. Generally speaking, the law protects anyone with a physical or mental impairment that is serious enough to substantially affect activities that are of central importance to daily life.
That broad definition covers many conditions that substantially limit mobility, since walking is considered a major life activity. It includes paralysis, loss of limbs, and other impairments that require use of a wheelchair, cane, and other adaptive devices to get around. It also covers impairments that may not be apparent, such as heart disease and other conditions that impede the ability to walk due to nerve damage, muscle weakness, or shortness of breath.
Fair housing law protects individuals with disabilities from discrimination by requiring communities to provide reasonable accommodations and modifications as necessary to allow individuals with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities. Each of these provisions covers parking in some way, but as a practical matter, nearly all parking-related requests that you’ll encounter will be for an exception to your parking policies as a reasonable accommodation for an individual with a disability.
Under the FHA, it’s unlawful to refuse to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling unit, including public and common-use areas. In essence, the reasonable accommodation provisions require communities to make exceptions to their general rules for individuals with disabilities when it’s both reasonable and necessary under certain circumstances. A prime example is a request for an exception to parking rules for an individual with a mobility impairment, according to HUD regulations.
Example: Your community has 300 units, with 450 parking spaces that are available to residents and guests on a first-come, first-served basis. One resident has a mobility impairment and can’t walk more than a short distance without difficulty. He asks you to reserve a parking space near his unit so he won’t have to walk very far to get to his unit. It’s unlawful to refuse to make this accommodation, according to the regulations. Without a reserved space, the resident might have great difficulty getting from his car to his unit—or may be unable to live in the community at all if he has to park in a space far from his unit. The accommodation therefore is necessary to afford him an equal opportunity to use and enjoy a dwelling—and it’s reasonable because it is feasible and practical under the circumstances.
Nevertheless, HUD says that the FHA doesn’t require a community to make an exception to parking rules unless there’s an identifiable relationship between the requested accommodation and the individual’s disability. And the requested parking accommodation must be more than a mere convenience; it must be necessary to allow the resident to live in and fully enjoy the community.
In addition to federal law, there are state and local fair housing laws banning discrimination against individuals with disabilities. In some cases, you could face fair housing trouble under state or local law for refusing a resident’s disability-related request for parking accommodations.
Example: In 2014, the Maryland Civil Rights Commission reported that an administrative judge ordered a condominium community to pay $10,000 for violating state fair housing law by denying a resident’s request for a reserved parking space as a reasonable accommodation for her disability. For many years, the resident had a reserved parking space next to her unit due to her disability, but she said that the community removed it during a repaving project and refused to reinstate it. After a trial, the judge sided with the resident, rejecting the community’s claim that she no longer needed the specially designated parking space. The court ruled that the community’s decision was based on its unilateral and unproven determination that it was unnecessary, but offered no persuasive reason for denying the accommodation [Smith v. Windgate Condominium Council, July 2014].
Example: In February 2015, the Santa Monica City Attorney’s Consumer Protection Division sued the owner of a Santa Monica apartment building—the first case filed under a new city law that requires landlords to provide to tenants reasonable accommodations based on their disabilities. The complaint alleged that the owner took away the parking space of a resident with a disability without justification, forcing her to park on the street. Despite providing documentation that she needed a space close to her unit because of a disability, the complaint alleged that the owner refused to restore her parking space.
“We help tenants and landlords resolve dozens of disability-related cases every year,” Deputy City Attorney Gary Rhoades said in a statement. “But in the rare situation where a landlord refuses to make an accommodation that’s reasonable and needed, we will turn to the courts under our new law.”
7 RULES FOR HANDLING DISABILITY-RELATED REQUESTS
FOR PARKING ACCOMMODATIONS
Rule #1: Consider Requests for Special Parking Arrangements Under Reasonable Accommodation Policy
Even if your general policy is to provide unassigned parking on a first-come, first-served basis, you shouldn’t flatly refuse to make an exception if there’s any suggestion that it’s needed because of a disability. Treat any disability-related request for special parking arrangements the same as you would any other request for an exception to your standard policies—all such requests should be handled as requests for reasonable accommodations.
Under the FHA, an applicant makes a request for a reasonable accommodation whenever he makes clear that he is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability, according to the HUD/DOJ Joint Statement on Reasonable Accommodations Under the Fair Housing Act (federal guidelines). The FHA doesn’t require that the request be made in a particular manner or at a particular time, so it may come up at the outset of the tenancy—or sometime later.
A person with a disability need not personally make the reasonable accommodation request—it can be made by a family member or someone else working on her behalf. The FHA doesn’t require an applicant or resident to mention fair housing law or to use the words “reasonable accommodation,” so it’s important to pay attention any time someone says she needs or wants an exception to your standard policies—including some special parking arrangements—because of a disability.
Fair housing experts recommend adopting a general reasonable accommodation policy that explains the community’s commitment to comply with fair housing law by making adjustments to rules, policies, practices, or services that are necessary to afford a person with a disability an equal opportunity to use and enjoy the community. In addition, the policy may describe the procedures for submitting requests and the steps the community may take to evaluate them.
You may ask the person making the request to submit it in writing or fill out a form, but you can’t require him to do so. You must still consider a reasonable accommodation request even if the resident makes the request verbally or won’t use your preferred forms or procedures for making such requests.
And the law prohibits communities from requiring residents with disabilities to pay extra fees as a condition of receiving a reasonable accommodation. If a community generally doesn’t charge residents for parking, for example, then the community may not impose an extra fee upon a resident who requires an accessible space or other disability-related parking accommodation.
COACH’S TIP: Adopt procedures to ensure your community responds to parking accommodation requests in a timely manner. An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation, according to federal guidelines.
Rule #2: Get the Specifics About Parking Requests
What should you do when an applicant or resident asks for a parking space as a reasonable accommodation? It’s a common question, according to Kitay, who says that you should get the specifics about what the resident wants.
Don’t automatically assume that you have to create a fully accessible parking space, says Kitay. Among other things, a fully accessible space requires signage, an access aisle of a certain width, sometimes with vertical clearance, and must be located on an accessible route. Because of the access aisle, a fully accessible space is wider than a standard parking space, which would mean you’d lose space in your parking area.
But the resident may not need a fully accessible space, Kitay says, so you have to engage in an “interactive process” to find out what specifically she’s looking for. In most cases, the resident is asking for a reserved parking space because of distance—because she can’t walk more than a certain distance from the parking lot to her home—not because of maneuverability. Most people are satisfied with a parking space reserved for their exclusive use in a particular location, even though it’s a standard parking spot, she says.
Kitay says she’s often asked whether it’s okay to simply assign one of the existing accessible spaces. The answer, she says, depends on whether your community has enough existing accessible spaces under federal, state, and local requirements. If your community just meets the basic minimum requirements, then the answer is no, she says.
Furthermore, Kitay says that you can’t just tell a resident who’s requesting a parking accommodation to use an existing accessible space, because that’s not satisfying her request for an accessible parking spot reserved for her exclusive use. There’s nothing to stop other residents and anyone else from parking there if they have state-issued parking plates or placards issued to drivers with mobility disabilities and entitling them to legally park in spaces reserved for people with disabilities. Even if you create an accessible space, you could face a fair housing complaint if you won’t reserve it for the resident’s exclusive use and she never gets the chance to park there.
Example: In October 2015, HUD charged the owner and managers of a 120-unit complex in Minnesota with violating fair housing law by denying a reasonable accommodation request by a resident with disabilities for a dedicated accessible parking spot.
The resident, who had an ambulatory disability and couldn’t walk more than 200 feet, filed the HUD complaint alleging that the owners refused to allow her to have a dedicated accessible parking space. The owners did designate an accessible space that did meet her needs, but the spot was often occupied by other residents because it wasn’t reserved for her sole use, according to the resident. After experiencing several falls because she had to walk significant distances to her unit, the resident said that she moved out for fear of hurting herself further. HUD’s charge will be heard by an administrative law judge unless any party elects to take the case to court.
“Housing providers need to understand that many people with mobility impairments rely on amenities, such as accessible parking spaces, to perform daily functions and that as providers they have an obligation to grant those accommodations,” Gustavo Velasquez, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD remains committed to taking action when the housing rights of individuals with disabilities are violated” [HUD v. Persaud Bramante Apartments LLC, October 2015].
Rule #3: Determine Disability-Related Need for Requested Parking Accommodation
When you receive a reasonable accommodation request, keep in mind that there are strict rules about when you can—and can’t—ask for disability-related documentation to support the request.
In general, you’re allowed to ask for information that’s needed to evaluate if the parking accommodation may be necessary because of a disability. But you can’t ask for further information if the disability is obvious or otherwise known to you, and if the need for the requested parking accommodation is also readily apparent or known, according to federal guidelines.
Example: An applicant with an obvious mobility impairment who regularly uses a walker to move around asks you to assign her a parking space near the entrance to the building instead of a space located in another part of the parking lot. Since the physical disability—that is, difficulty walking—and the disability-related need for the parking request are both readily apparent, you may not require her to provide any additional information about her disability or her need for the parking space.
Though some disagree, Kitay says that you shouldn’t ask for additional documentation if the applicant or resident already has a government-issued parking plate or placards for vehicles that transport drivers or passengers with disabilities. She says that those credentials should be considered sufficient verification that the resident has a disability-related need for a parking accommodation.
On the other hand, you may ask for additional information if either the disability or the need for the requested parking accommodation is not obvious. If the disability isn’t obvious, the federal guidelines permit a community to request reliable information to verify that the person’s condition meets the FHA’s definition of “disability.” Depending on the circumstances, the guidelines state that such information may come from the individual himself, a medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability.
If the resident or applicant qualifies as an individual with a disability under the FHA, then you may request only the information that’s necessary to evaluate if the parking accommodation is needed because of a disability. Such information must be kept confidential and may not be shared with others unless they need the information to evaluate the reasonable accommodation request.
Rule #4: Grant Reasonable Requests for Disability-Related Parking Accommodations
In general, you should grant reasonable requests from applicants or residents with mobility problems for parking accommodations, such as a designated parking space near a building entrance or a resident’s unit, an accessible parking space, or a space designed for van parking. When there’s a clear relationship between the resident’s disability and the need for the requested parking accommodation, the law requires the community to grant the request unless it would impose an undue financial and administrative burden on the community or fundamentally alter the nature of the community’s operations.
To prevent others from using the space, Kitay recommends putting up a sign or otherwise marking the space as reserved or permit-parking only, but it shouldn’t identify the resident or his unit number. And, she says, don’t designate in any way that the reserved space is related to a disability—otherwise, other residents or visitors with disabilities who have government-issued plates or placards may believe they’re allowed to park there.
Rule #5: Get Legal Help If Requested Accommodation Seems Unreasonable
It may not come up often, but you should get legal help if confronted with a request that seems unreasonable. For example, a resident may demand a particular space that’s already been reserved as a disability-related accommodation to a neighbor. Or if your community has limited parking, there may not be space available to grant a resident’s request because all available parking has already been reserved as a reasonable accommodation for other residents with disabilities.
When handling requests like these, Kitay says that you should grant requests in the order received—don’t get into issues about who’s more disabled than someone else. You don’t have to take spaces away from other residents with disabilities who previously received spaces as reasonable accommodations. If all available parking has already been assigned to other residents with disabilities, it may be necessary to start a waiting list for residents requesting parking accommodations. In general, you don’t have to create new spaces by paving over an area to enlarge your existing parking lot, she says.
By the same token, you may get a request for a reserved parking space by a resident who doesn’t drive but wants it for use when someone comes to pick him up or drop him off. In general, Kitay says that you don’t have to grant the request if there’s accessible visitor parking or available space in loading zones for pickup and drop-off.
In most cases, you can’t deny a resident’s disability-related request for a reserved or accessible space because it involves some cost to the community, as long as it wouldn’t impose an undue financial and administrative burden on the community. Providing a parking accommodation could include creating signage, repainting markings, redistributing spaces, or creating curb cuts, and other expenses.
If the requested parking accommodation requires more costly expenditures, then the request may be considered an undue financial and administrative burden, depending on factors such as:
- The cost of the requested accommodation;
- The financial resources of the community;
- The benefits that the accommodation would provide to the resident; and
- The availability of other, less expensive alternative accommodations that would effectively meet the resident’s disability-related needs.
COACH’S TIP: In general, requests for parking spaces because of physical disabilities are considered reasonable accommodations as opposed to reasonable modifications under the FHA, according to federal guidelines. Reasonable accommodations involve changes to rules, policies, and procedures, while reasonable modifications involve structural changes to existing premises, including common areas. In general, the community must pay the costs associated with a reasonable accommodation, while the resident is responsible for costs associated with a reasonable modification. According to federal guidelines, courts have treated requests for a parking space as requests for a reasonable accommodation and have placed the responsibility for providing the parking space on the community, even if it results in some cost to the community.
Rule #6: Offer Alternatives to Unreasonable Accommodation Requests
You don’t have to grant an unreasonable parking accommodation request, but that doesn’t mean that you should simply deny any accommodation. Fair housing experts say that the key to avoiding fair housing trouble is to offer a reasonable alternative that would allow the resident the opportunity to live in and fully enjoy the community. The courts, HUD, and state and local enforcement agencies will look at what you offered if the resident rejects your alternative accommodation and files a fair housing complaint.
When a requested accommodation is unreasonable, federal guidelines say that the community should engage in an “interactive process” with the person making the request to discuss possible alternatives that would meet the resident’s disability-related needs and wouldn’t fundamentally alter the community’s operations or impose an undue financial and administrative burden on the community. If such an alternative exists, then the community must provide it, according to the guidelines.
Rule #7: Learn More About Number of Accessible Spaces Required
Kitay is often asked about how many accessible spaces a community needs to have, but she says that there are no easy answers because it depends on the date of construction, type of funding, and the state in which the community is located.
In addition to other applicable federal, state, and local laws, the FHA requires all new multifamily housing built after 1991 to be accessible and usable by people with disabilities. Among other things, the FHA’s design and construction standards require accessible and usable public and common use areas, including minimal levels for accessible parking for residents and visitors. If parking is provided at the site, the rules call for accessible parking on a route accessible to people in wheelchairs for at least 2 percent of the dwelling units.
The question usually comes up in new construction, but it could also come into play if you’re considering whether to assign an existing accessible space to satisfy a resident’s reasonable accommodation request. You shouldn’t do it, Kitay says, if your community has only enough accessible spaces to meet minimum requirements under applicable federal, state, and local laws, because doing so would cause the community to fall below required threshold requirements.
COACH’S TIP: Make sure your leasing office has enough accessible parking under the Americans With Disabilities Act (ADA). In general, it’s the FHA—not the ADA—that applies to conventional housing communities. But because the leasing office is open to the public, it’s considered a public accommodation so it must meet the ADA’s requirements for accessible parking.
- Fair Housing Act: 42 USC §3601 et seq.
- HUD/DOJ Joint Statement on Reasonable Accommodations Under the Fair Housing Act: http://www.hud.gov/offices/fheo/library/huddojstatement.pdf.
Theresa L. Kitay, Esq.: Attorney at Law, 578 Washington Blvd., Ste. 836, Marina del Rey, CA 90292; (310) 578-9134; firstname.lastname@example.org.
Carl York, CPM® Emeritus, CAM, CAPS: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.
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|February 2016 Coach's Quiz|