Co-op and Condo Boards Can Face Suits Over Accommodation Refusals

Co-op and condo boards must make reasonable accommodations for a host of "protected classes" — or face potentially crippling charges of discrimination. As one New York City co-op board learned recently, those protections extend to religious practices.

Instead of a doorman, this co-op has an electronic keypad beside the front door that requires residents to enter a code to open the door. But one shareholder, an observant Jew, is forbidden from using electric devices on the Sabbath, and so he asked the co-op board to give him a key that opens a door to the basement, where there is a staircase to the lobby. The co-op board told him the basement door was off-limits to residents.

Big mistake, according to the Ask Real Estate column in The New York Times. A request for a key to enter a side door in order to adhere to sincerely held religious belief of Sabbath observance should be honored by every co-op and condo board, unless there is a credible reason why tenants’ use of that entrance is dangerous.

If a co-op or condo board refuses to grant this “extremely reasonable request,” that could be evidence of discrimination, exposing the board to legal liability, says Ali Frick, a partner at the law firm Kaufman Lieb Lebowitz & Frick. “The co-op could be held liable for its neutral policies if they have a disparate impact on a religious group — as its keypad-only policy appears to have.”

A co-op shareholder or condo unit-owner can hire a lawyer to write a letter to the board explaining that he or she observes the Sabbath and that using a keypad prevents keeping religious practice, in effect denying equal access to the building.

“If the co-op flatly rejected your request, you can sue for discrimination because they are effectively making the building unavailable to observant Jews,” says Andrew Lieb, managing partner at his eponymous law firm. The lawsuit could result in a judge ordering the board to grant access to the shareholder, while also awarding him with emotional support damages, other consequential damages, statutory penalties, and attorneys’ fees, Lieb adds.

A 1994 state court decision on this topic that originated in Queens found in favor of the building, because electronic locks were used to deter crime and did not have a discriminatory intent or effect. However, Lieb notes, a different argument could be made based on a more recent federal appellate case, one that states that the co-op’s actions can be discriminatory if they have a negative impact on one group of people. 

The only excuse for this co-op’s refusal to give the shareholder a key to the basement door would be to show that the refusal involved no discriminatory intent and no discriminatory effect.

"Which is impossible," Lieb says, "given that (the refusal) eliminated observant Jews from entering their housing.”

The bottom line: Boards must not only grant reasonable accommodations, they must also treat all residents equally.