Responding to Requests for Disability-Related Parking Accommodations
Nearly 61 million people in the U.S., roughly one in four of the adult population, have disabilities. Mobility impairment is the most common disability, particularly among those age 65 and older. Leasing to people with disabilities poses fair housing compliance challenges. Simply refraining from adverse treatment in rental and leasing isn’t good enough; landlords are also legally required to take active steps to accommodate the special needs of applicants and tenants with disabilities. One of the most crucial of these needs is an accessible parking space.
There are two broad things landlords can do to meet this need:
- Design and construct the building to ensure that it has an adequate number of accessible parking spaces; and
- Once the building is up and running, make necessary adjustments to your normal parking lot protocols and perhaps even physical facilities.
This month’s lesson focuses on the latter strategy. What does accommodating the parking needs of disabled applicants and residents involve? And how far do you actually have to go? Those are the question’s the lesson will answer. First, we’ll explain the laws of reasonable accommodation and how they apply in the context of accessible parking. Then, we’ll outline seven rules to follow to ensure that your rental staff is prepared to properly process and make legally sound decisions if and when applicants and tenants actually do request parking accommodations. At the end of the lesson, you can take the Coach’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
Disability is one of the seven grounds the federal Fair Housing Act (FHA) protects from discrimination (the others are race, color, religion, national origin, sex, and familial status). One form of disability discrimination banned by the FHA is “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.”
“Disability” is defined broadly as including individuals who have or are regarded as having a physical or mental impairment that substantially limits one or more “major life activities.” The latter term is defined as including walking and other activities of central importance to daily life, such as seeing, hearing, breathing, performing manual tasks, caring for one’s self, learning, and speaking.
Bottom Line: Conditions that substantially limit mobility are deemed disabilities, regardless of whether they’re plain to see or due to heart disease, muscle weakness, shortness of breath, or other physical and mental conditions that aren’t readily apparent.
Reasonable Accommodations vs. Reasonable Modifications
Section 3604(f)(3)(A) of the FHA includes a parallel ban on refusal to allow “reasonable modifications of existing premises.” Like reasonable accommodations, reasonable modifications are reasonable changes necessary to afford a disabled applicant or tenant “full enjoyment” of the premises. But there are two important differences:
- A reasonable modification is a structural change made to the property, while a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service;
- More significantly, tenants are responsible for the costs of modifications while landlords must pay for accommodations.
Requests for parking spaces are generally requests for a reasonable accommodation, rather than a reasonable modification, according to Department of Housing and Urban Development (HUD) Guidelines (Joint Statement of [HUD] and the Department of Justice Reasonable Modifications under the [FHA], March 5, 2008) (which we’ll refer to as the Guidelines). Result: Landlords must pay the costs of required parking accommodations, which may include (this list isn’t exhaustive):
- Providing reserved, designated, or accessible parking spaces;
- Waiving a first-come, first-served parking policy;
- Creating and posting signs;
- Repainting parking markers;
- Redistributing parking spaces; and
- Creating curb cuts.
Other Laws May Apply
Keep in mind that federal FHA rules are minimum requirements. You may also have to comply with more stringent requirements under other laws, including:
- The federal Americans with Disabilities Act (ADA), which may come into play when you invite the public to park such as letting rental applicants and others who aren’t your tenants or employees park at the community or leasing office;
- Section 504 of the of the federal Rehabilitation Act of 1973, which imposes stricter discrimination rules on landlords that participate in HUD housing and other federal assistance programs; and
- State and local fair housing laws, which are often much stricter than the FHA.
Example: A Maryland administrative judge ordered a condominium community to pay $10,000 for violating state fair housing law by refusing a disabled resident’s request to restore a reserved parking space that the community took away as part of a repaving project [Smith v. Windgate Condominium Council, July 2014].
7 RULES FOR HANDLING REQUESTS
FOR DISABILITY-RELATED PARKING ACCOMMODATIONS
The following seven rules fall into three broad categories:
- Processing accommodations requests (Rules #1 to #3);
- Determining whether the requested accommodation is reasonable (Rules #4 and #5); and
- Implementing the accommodations you determine are reasonable (Rules #6 and #7).
Rule #1: Respond to All Accommodations Requests
You don’t have to make accommodations unless they’re requested. Nor are you required to grant any and every accommodation request. But you do at least have to consider any accommodations requests you receive, no matter how baseless and frivolous you think they are.
Such an assumption may arise when the requestor doesn’t appear to be disabled. “You can’t ignore a request for an assigned parking space close to a building or other accommodation for mobility impairment simply because the person who requests it doesn’t use a wheelchair, cane, or display any other outward appearance of a disability,” warns Atlanta attorney Lynn Wilson. Remember that the FHA definition of “disability” encompasses non-obvious or readily visible conditions that may impair a person’s mobility, including heart and lung disease.
Example: One reason the Maryland condo community got hit with a $10,000 fine in the Windgate case discussed above is that it concluded that the resident didn’t need her reserved parking space anymore because she was no longer disabled. But that opinion, the court noted, was based purely on the resident’s outward appearance without any evidence to support it.
Exception: Courts have ruled that landlords aren’t obliged to grant accommodations requested by disabled individuals who aren’t legally authorized residents of the community.
Example: The son of a trailer park tenant, whose name wasn’t on the lease, refused to pay rent or leave the unit after his father died. He also asked the landlord to accommodate his disability by waiving park rules and allowing him to store his car immediately next to his mobile home. When the landlord refused, he sued for disability discrimination. But the California federal court tossed the case without a trial, finding that the FHC duty to accommodate doesn’t cover a person who never entered into a lease or paid rent to a landlord [Salisbury v. City of Santa Monica, 2021 U.S. App. LEXIS 16848].
Rule #2: Don’t Reject Accommodations Because of How or When They’re Requested
Those seeking accommodations needn’t use the phrase “reasonable accommodations,” “fair housing,” or any other magic words. All they have to do, according to the HUD Guidelines, is make it clear that they’re requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability. Nor does the FHA require that a request be made in any particular manner or at any particular time. Key things to keep in mind:
- Accommodations requests can be made by rental applicants as well as tenants at the start or at any time during their tenancy;
- You can ask applicants and tenants to put their requests in writing, but you can’t require them to do so; and
- A family member, guardian or other third party may request a reasonable accommodation on a disabled applicant or tenant’s behalf—although a third party can’t demand a parking accommodation solely for his or her own benefit, as illustrated by the Salisbury case above.
Coach’s Tip: HUD recommends that landlords create forms and procedures that people can use to submit written requests for parking and other accommodations. This can help facilitate and speed up the processing of requests and “prevent misunderstandings regarding what is being requested, or whether the request was made.” However, the Guidelines add, landlords “must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the [landlord’s] preferred forms or procedures for making such requests.”
Rule #3: Properly Verify the Requestor’s Disability and Need for the Accommodation
The next challenge is to process the parking accommodations requests you receive in a legally sound way. Normally, you’re not allowed to ask applicants or tenants if they’re disabled or about the nature and extent of their disability. However, the Guidelines give landlords some leeway to gather information about a person’s disability in response to a reasonable accommodation request to the extent the information is necessary to determine three things:
- That the person meets the FHA definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities;
- Exactly what accommodation is being requested; and
- Whether there’s a “nexus” or relationship between the disability and the need for the requested accommodation.
Example: A tenant with Alzheimer’s requested an assigned parking space, but his landlord said no. The California federal court dismissed the tenant’s failure-to-accommodate claims because of the lack of evidence showing how having an assigned parking spot was an accommodation necessary to “ameliorate the effects” of his disability [Elliott v. QF Circa, Case No. 16-cv-0288-BAS-AGS, June 18, 2018].
Beware: There are limits on what information you can and can’t ask for, depending on what you already know or can easily surmise to make these determinations.
Rule A: If the person’s disability and need for the accommodation are obvious, or otherwise known to you, you can’t request any additional information about the disability or disability-related need for the accommodation.
Rule B: If the disability is known or readily apparent to you, but the need for the accommodation is not, you may request only information that’s necessary to evaluate the disability-related need for the accommodation.
Example: An applicant with an obvious mobility impairment who regularly uses a walker to move around asks her housing provider 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 (difficulty walking) and the disability-related need for the requested accommodation are both readily apparent, the landlord can’t require the applicant to provide any additional information about her disability or need for the requested accommodation [Guidelines].
You may be able to get the information you need to verify that the person meets the FHA definition of disability directly from the requestors themselves, for example, in the form of credible statements from the individuals, or the fact they have government-issued disability license plates or placards on their vehicle or receive Supplemental Security Income or Social Security Disability Insurance benefits despite being under age 65.
If necessary, which should rarely be the case when parking accommodations are requested, the Guidelines say landlords can also seek verification from a doctor or other medical professional, peer support group, non-medical service agency, or reliable third party in a position to know about the individual’s disability. However, they must limit the request only to the information needed to verify the disability and need for the accommodation.
Rule #4: Determine If Requested Accommodation Is Reasonable
You need only grant requested accommodations that are reasonable. According to HUD, a request for an accommodation is reasonable if it:
- Doesn’t cause landlords to incur an undue financial and administrative burden;
- Doesn’t cause a basic or fundamental change in the nature of the housing program available;
- Won’t cause harm or damage to others; and
- Isn’t technologically possible.
These criteria are critical, so let’s look at them more closely.
Financial and administrative burden: You can’t deem a requested accommodation unreasonable simply because it costs time and money to provide. The burden must be “undue,” based on the accommodation’s costs, the landlord’s financial resources, the benefits to the requestor, and the availability of cheaper, easier alternatives that would effectively meet the requestor’s needs. “In general, you don’t have to create new spaces by paving over an area to enlarge your existing parking lot,” notes fair housing attorney Terry Kitay.
Fundamental alteration: Accommodations require “fundamental alterations” when they alter the essential nature of a landlord’s operations.
Example: A tenant with a severe mobility impairment asks his landlord to transport him to the grocery store and help him with his grocery shopping. The request wouldn’t be a reasonable accommodation to the extent that the landlord doesn’t provide any transportation or shopping services for any of its tenants [Guidelines].
Harm or damage to others: In the parking accommodations context, this basically means that you don’t have to take away or deprive one disabled resident’s reserved space to accommodate another.
Technologically impossible: This criterion is highly unlikely to apply in a parking accommodations request. To the extent physical alterations are involved, the issue will probably be about costs.
If you do determine that a requested parking accommodation is unreasonable, for whatever reason, Wilson suggests that you consult an attorney for advice before notifying the requestor of your decision.
Rule #5: Offer Alternatives to Unreasonable Accommodations
The accommodations process doesn’t end simply because you conclude that a requested parking accommodation is unreasonable. Before you reject the request, you need to dig deeper and consider whether there are any reasonable alternative accommodations you could provide to meet the requestor’s needs.
Example: Let’s go back to the example above where a disabled tenant’s request that a landlord drive him to the grocery store would be deemed an unreasonable accommodation to the extent such services aren’t offered to any tenants. Even though the landlord can deny the request, it should consider alternatives that would meet the tenant’s needs without forcing a fundamental alteration of operations. For example, maybe it can alter its parking policy to allow a local volunteer to park her car close to the tenant’s apartment so she can drive him to the store and help him shop for groceries.
The Guidelines call on (and some courts, including the Seventh Circuit, require) landlords to engage the requestor in an “interactive process” to discuss alternatives. The landlord can even use this approach when a requested accommodation is reasonable but simpler and less costly alternatives would be just as effective. However, HUD cautions, landlords need to keep in mind that these suggested alternatives are just that, suggestions. Bottom Line: If an accommodation is reasonable, the requestor isn’t obligated to accept any of your suggested alternatives.
Don’t shuffle or take away parking spaces previously assigned to disabled tenants based on an assessment of who’s “more disabled” and needs them the most, cautions Kitay. If you reach the point where there’s no more reserved or designated disability parking available, grant requests in the order received and establish a waiting list for assigning spaces that open up based on which disabled tenant has been waiting the longest.
Rule #6: Don’t Ask for Extra Fees or Deposits on Reasonable Accommodations
You’re not allowed to charge a fee for processing or granting a reasonable accommodation request. Nor can you require the requestor to make a deposit to receive the accommodation once you determine that the request is reasonable. Charging extra fees and security deposits is one of the most common ways landlords get into trouble, especially when parking accommodations entail monetary costs or additional liability risks.
Example: A Pennsylvania senior housing provider had to shell out $80,000 to settle discrimination claims brought by mobility-impaired tenants and fair housing agencies, including for allegedly charging disabled tenants as much as $350 for designated parking spaces necessary to make their apartments accessible [Clover Group, May 2020].
Example: A landlord determines that a wheelchair-bound tenant’s request for a wider parking space is a reasonable accommodation. “We’ll pay the construction costs to widen the space,” says the landlord, “as long you post a security deposit to cover the costs of restoring the space to its previous dimensions when your tenancy ends.” The landlord would be guilty of an accommodations violation.
Rule #7: Keep Requestor’s Personal Information Confidential
Recognize that the personal information you collect to process an applicant or tenant’s request for a disability-related parking accommodation is protected by privacy laws. Result: You must keep the information confidential and secure, use it only for purposes of processing the accommodations request, and not share it with others except when you’re legally required to do so (for example, if a court issues a subpoena requiring you to disclose the information). These privacy obligations apply regardless of whether you ultimately grant or deny the accommodations request.
One common pitfall arises when landlords post a sign or mark the space as reserved for a disabled tenant. While this may be necessary to prevent others from parking in the space, it becomes privacy problematic when the sign identifies the name or unit number of the apartment of the tenant for whom the space is reserved. It’s especially privacy-invasive when the tenant’s disability isn’t readily apparent or known to people who read the sign.
That’s why Kitay recommends that you limit signs and markings to phrases like “Space Reserved” or “Permit Parking Only,” without mentioning anything about the person for whom it’s reserved. Even designating the space as being reserved for use by the disabled is inadvisable since other tenants and visitors with government-issued disability license plates may think they’re entitled to use the space themselves.
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|August 2021 Coach's Quiz|