Marc Schneider, Managing Partner, Schneider Buchel

In a case called Hubbard vs. Samson Management, the critical issue was whether a co-op or condo board must offer a free parking space close to the home of a disabled person who has difficulty walking. The plaintiff in this case, Sarah Hubbard, rented an apartment at Sleepy Hollow Gardens, an apartment complex managed by Samson Management. The complex has 151 free outdoor parking spaces as well as 20 outdoor and 81 indoor reserved parking spaces, for which it charges a fee. But there were no designated spaces for handicapped residents.

It's important to note that the fee for the outdoor reserved spaces was significantly lower than the fee for the indoor reserved spaces. Interestingly, the reserved parking spaces were farther away from people's units than the 151 free ones. So, since moving in, Hubbard found that the unreserved spaces that were nearest to her unit were often filled and she was forced to walk a much longer distance to and from her car. She suffered from a foot injury and had back pain. It's also important to note that it was agreed between the defendant and the plaintiff that she did have a disability that qualified her for the protections under the Fair Housing Act.

So she requested a reserved space closer to her apartment. Instead of simply granting her request, the landlord gave her two choices: she could either use the unreserved parking spaces, or she could pay for a reserved space just like everybody else. Basically, that was the equivalent of denying her request. After Hubbard made repeated requests for five months, management finally offered her a space close to her unit for a fee – the same fee that they would charge her for reserved space farther away. Otherwise, she could use three unassigned handicapped parking spaces in the complex, but these were farther from her unit.

Hubbard filed a discrimination complaint with the U.S. Department of Housing and Urban Development (HUD), which investigated and issued a discrimination charge against the co-op. This means that HUD believed that the landlord's agent discriminated against Hubbard. As a result, she now had a choice: she could either proceed to an administrative hearing or file a lawsuit in court. She opted to file the lawsuit, alleging that the defendant violated the Fair Housing Act. The government also filed a lawsuit on her behalf.

It's important to note that the Fair Housing Act prohibits discrimination based upon a person's handicap in the sale, rental, or provision of services or facilities connected with housing. This also applies to co-ops and condos, though this particular case dealt with rental housing. Discrimination includes a housing provider’s refusal to make reasonable accommodations when they may be necessary to give a handicapped individual an equal opportunity to enjoy a dwelling.

The key issue is: what exactly is meant by “an equal opportunity to enjoy” your dwelling? It’s an interesting question. In this case, the court agreed that an accommodation is not supposed to extend a preference to handicapped residents relative to other residents. It's merely supposed to level the playing field so that the disabled person can enjoy his or her home the same as someone who doesn't have a disability.

To determine whether the act requires a proposed accommodation, courts generally will weigh the burdens that it wouldimpose on an individual who has to give the accommodation against the benefit to the person requesting the accommodation. In that regard, you should note that, as a landlord, a co-op may actually be required to incur reasonable costs to accommodate a tenant's handicap, provided the accommodation does not pose an undue hardship or substantial burden.

In the Hubbard case, the defendant claimed that providing a reserved space to the plaintiff free of charge would place an undue burden on the landlord and unfairly grant her preference over other residents who paid for the privilege of a reserved parking space. The court was not persuaded, saying that the proposed accommodation imposed no burden on the defendants.

Granting Hubbard a parking space near her apartment would not reduce the number of revenue-generating spaces because those 20 spaces are still outside for others to reserve. Giving her a space closer to her unit that's free to others is not going to reduce the landlord’s income.

The court also considered the defendant’s argument that giving Hubbard a free space would unfairly benefit her over the rest of the community that wants to reserve space. The court disagreed, finding that although other residents had to pay for a reserved space, their lack of disability enabled them to utilize the free spaces and park within a comfortable walking distance of their apartment – something that Hubbard could not do because of her disability.

The court stated that, in light of Hubbard's handicap, reserving a space for her may be the only way to be certain that she had the same ease of access to her apartment that her neighbors had to theirs. Basically, the court said that Hubbard’s handicap required the defendant to give her a free parking spot close to her apartment. The court ultimately held that because the defendants failed to extend this reasonable accommodation, the landlord's property manager and managing agent had discriminated against Hubbard in violation of the Fair Housing Act.

Had the defendants acted more promptly in responding to Hubbard’s request, they would have probably avoided liability in summary judgment. There are several lessons to be learned from this particular scenario. Number one, act promptly. Delay is the equivalent of a denial of a reasonable accommodation request under the Fair Housing Act. Number two, don't assume that waiving a fee gives a handicapped person an unfair advantage over other residents. There are instances where it's going to be required. Number three, don't offer an accommodation and add a fee. Lastly, when you get a request for a reasonable accommodation, consult with your attorney immediately so that you avoid liability and make the right decisions.