When Is a Rule Not a Rule?

It seemed simple enough. The woman was buying an apartment in the Long Island co-op and was given a copy of the house rules. She asked if she could install a washer and drier in her second-floor apartment. The board said, "no," that was forbidden - it clearly said so in the house rules. The woman signed a document acknowledging that she understood and agreed to the rules.

Then, some months after she moved in, she again requested a washer and drier, saying that she was handicapped and couldn't manipulate the stairs with a full load of laundry. The board again turned her down. This time, the woman was not as benign. She took her complaint to the Fair Housing and Equal Opportunity Office at the Department of Housing and Urban Development, which administers the federal Fair Housing Act, and to the New York State Division of Human Rights. The agencies opened inquiries. Under threat of huge fines if a judgment went against it, the board ultimately folded and let her have the washer and drier.

"This is not right," complains the sponsor of the co-op, who still owns units in the building. "She knew going in what the rules are. Everybody signs a document saying, 'We've read the house rules, we'll abide by the house rules; I'm not going to have a dog; I'm not going to have a pet; I'm not going to have a washer and drier in my apartment.' She signed off on it."

When is a rule not a rule? Answer: when it involves people with disabilities. And boards that don't understand that can be facing hefty legal bills or fines or both. For instance, buildings that don't adhere to the city's handicap access law can find themselves paying penalties as high as $100,000. There are state and federal requirements - and fines - as well.

The first mistake the Long Island co-op made was in believing that a resident could relinquish her rights. According to co-op/condo attorney Arthur Weinstein, there are certain rights that the courts have generally said cannot be waived. "Landlord-tenant law is filled with provisions that say a landlord cannot force a tenant to release any of the tenant's rights under the law," he notes. "Although co-ops and condos are materially different from a lot of those cases, many of [the same rules] hold true. Many buildings, through the admissions process, have tried to get prospective tenants to waive their rights. We've always been nervous about whether that is enforceable or not."

Does that mean your house rules and bylaws are worthless? As far as people with disabilities go, the answer is "yes." If a resident can prove that he or she is handicapped, then that person can get a special exemption, whether it is to have a dog in a no-pet building or a washer and drier in a co-op that forbids them.

There are only two legitimate ways to challenge claims by the disabled: prove that their disability is not a disability and/or show that the alteration to accommodate them is impossible to implement.

The disability that wasn't. Experts say you should examine whether a disability is bona fide or not. "The real question is: is it a recognized handicap?" asks attorney James Samson, a partner in Bangser, Klein, Rocca & Blum. "A lot of doctors think dogs are helpful - they are soothing, calm the nerves, etc. But is that generated by a desire to have a dog or by a recognized disability? Is it a handicap or is it just someone who feels the normal anxieties of city living and wants a dog and has a shrink who is willing to write a letter, saying, 'It would help his therapy if he had a dog'? They feel nervous, disoriented, alienated, lonely? Gee, that's 90 percent of New York City."

Adds Weinstein: "The board may be able to get an expert's opinion, saying she does not have as severe a handicap as she claims or that a handicap does not prevent her from using the laundry facilities. The board has that line of defense open to it."

Mission: impossible. It is also important to document the practicality of the accommodation. If adding a ramp is physically impossible, for instance, you may be off the hook. "Based on the disability, you should do an assessment as to whether it's reasonable and can be done," says Marc H. Schneider, an attorney who specializes in co-ops and condos. "There are buildings where people ask for handicap ramps and when you do the engineering on it you find you can't put in the ramp without carving out a portion of the building."

But be warned: excessive cost is not considered a valid reason for non-compliance. Georgetown Mews, a 920-unit Queens complex with 270 garden apartments, was forced to put in 10 ramps at costs of $3,000 to $5,000 per ramp (see "Hotline: The Price of Access," Habitat, December 2002).

In such situations, a board should look to be accommodating rather than confrontational since once the genie - i.e., a complaint to the city, state, or federal government - is let out of the bottle it is hard to put it back. The city's Commission on Human Rights, for example, will make a preliminary investigation, and if it finds any evidence of discrimination because of a handicap, the burden of proof falls on the co-op or condo. "Once Human Rights determines you have probable cause, then you're stuck," warns Samson. "You have a very heavy burden." The division, say attorneys and managers who have dealt with it, usually errs on the side of the complainant, and in recent years, has been aggressively investigating claims.

Finally, a board should weigh the special needs of the few against the high costs of litigation and try to work something out. "All too often, boards act on their emotions more than the laws," says Schneider. "You should consult with an independent expert. You're much better off dealing with it in an amicable sense than in a defensive sense. Because nine times out of ten you'll find the person making the request is entitled to it."