10 Tips on Parking as Reasonable Accommodation

| April 21, 2011 | 4 Comments

Parking as a Reasonable Accommodation Under the Fair Housing Act
Or
10 Tips on Parking as Reasonable Accommodation

There are so many really difficult fair housing issues out there (and costly ones, too). Apartment communities not designed and built with proper accessibility; the challenges of integrating people of different cultures and religions into the multihousing environment; senior communities and the mental impairments of some of the older residents.  The list of tough topics is long, but here we authors were asked to do this fair housing article on parking.  Parking!  While this should be a fairly easy topic, it happens to be one of the issues that continues to show up regularly in fair housing charges and cases.  And you wouldn’t believe how much these cases cost.  So, before we start the educational process, here is the first and perhaps most important thing you need to know: Landlords rarely win fair housing parking cases!  That message needs to be received loud and clear, and with that, let’s start the learning process.

1. People with disabilities (PWDs) are one of the seven federally protected classes under the Fair Housing Act (FHA) as amended in 1988. Learning Tip #1:  There are 3 types of disabilities – those physical disabilities you can see (loss of limb, cerebral palsy as examples), those physical disabilities you cannot see (diabetes, lung and heart conditions) and mental and emotional disabilities.  If any condition impacts the day-to-day life of a person, that person likely meets the definition of having a disability.  You must broaden your view of what a disability is.

2. PWDs are entitled to “reasonable accommodation”.  You can have your policies and procedures about who parks where and when, but if a PWD needs a change or waiver of those policies and procedures because of the disability, you must take reasonable steps to make the parking scenario usable for that person. Learning Tip #2: No disability “outranks” another disability.  Under the FHA a soldier who has lost one of her legs in war is no more disabled than the young man with depression or the older woman who has panic attacks.  A disability is a disability – so don’t judge or “stack rank” or take the “there is nothing wrong with that person” attitude, as that could likely get you in trouble.

3. You do not have the right to know what a person’s disability is. Learning Tip #3:  So don’t ask.

4. You do not have the right to know the extent of a person’s disability, i.e. how “bad” it may be.
Learning Tip #4:  So don’t ask.

5. You do have the right to verify the existence of a disability (but not what it is or the extent – see above) if the disability is not readily apparent. Learning Tip #5:  If you do not already use a “Request for Reasonable Accommodation” form (which covers all such requests, not just those related to parking) then talk to your legal counsel to provide you with one.  But remember that the form is only used when a reasonable person would not be aware of the existence of a disability or when that reasonable person is aware of a disability but does not see the connection to the request.  In addition, if you receive the information you need from another reliable source, rather than in response to your form, you can’t hold up the process by insisting the PWD use your form.

6. If a PWD asks you to work with them regarding their parking, make it happen.  We repeat: Landlords rarely win fair housing parking cases! Learning Tip #6: Just as there are many types of disabilities, there are many different needs related to parking.  Have a dialogue with the PWD and find out what they are trying to accomplish and how they think you might best be able to make that happen.
•    Is the need location based?  If so, which area works best for the person?
•    Does the PWD need a regular sized parking space, or one that is larger for van, wheelchair or walker use?
•    Does the PWD want the parking space designated as “handicapped parking”?
•    Does the PWD want the parking space designated as “reserved”?
•    Does the PWD also need a curb cut or ramp if one is not already in place?
Keep in mind that the concept of “reasonable accommodation” expects that the landlord will cover any so-called “de minimus” expenses associated with the accommodation.  In parking, for instance, the cost of the sign or some minimal parking lot striping would be small and should be paid by the landlord; installing a new ramp is likely a more significant cost and is typically the resident’s financial responsibility.

7. Reasonable accommodation is not limited just to providing the parking space.  There is a duty to “defend” that parking space on behalf of the PWD as well.  A landlord ended up paying when he provided a parking space for the PWD but then did nothing when others parked there. Learning Tip #7:  Have a dialogue with the PWD and let that person know that if there are any problems connected with the use of the parking space that you want those problems brought to your attention.  (In fact, a nice letter to this effect is wise.)  And when problems are brought to your attention, address them because (all together now): Landlords rarely win fair housing parking cases! Any accommodation you make with regard to parking is subject to the generally applicable parking rules of the property.  So if you tow cars that are improperly parked in “no parking” zones, or if you fine residents for improperly parking, those procedures apply as well to a parking space you’ve provided as an accommodation to a disability.

8. There is often a concern raised by those who manage senior housing that if they grant a request for reasonable accommodation that other residents will ask for the same.  Requests, no matter how few or how many, are taken in order and on their merits.  No PWD can be denied their right to reasonable accommodation (which is a civil right when you get right down to it) because of such concerns. Learning Tip #8:  So don’t even think about it.

9. Requests for reasonable accommodation, however, must in fact be reasonable.  Asking to park in the fire lane because it is near the door to the building is not reasonable.  Asking to have a parking space that is specifically assigned under the lease (a contract) to someone else is not reasonable. Learning Tip #9:  Keep in mind that you are not necessarily the standard of what is reasonable.  Standing in the shoes of a landlord may not give you the right perspective.  The ultimate arbitrator of “reasonable” is the judge and/or jury.

10. Finally, in the unlikely event you would ever have whiny residents, be prepared for comments such as “There is nothing wrong with her, why does she get to park there”?  Don’t dialogue with the whiner –  don’t talk about disability or reasonable accommodation (none of their business). Learning Tip #10:  Respond with a smile and say “Because as always we are complying with the law.” And if in fact, you are as always complying with the laws related to reasonable parking accommodation requests from PWDS under the Fair Housing Act, then good for you.  You are far less likely to be one of those landlords who loses money because of a fair housing complaint, charge or lawsuit.

REQUIRED LANGUAGE FOR ALL REPRINTS OF THIS ARTICLE:  This Fair Housing Focus article has been co-authored by Theresa L. Kitay, Esquire, who specializes in defense of Fair Housing Act cases and Nadeen Green, Senior Counsel with For Rent Media Solutions™, who regularly teaches fair housing classes to the apartment industry.  The information contained in this article is not to be considered legal advice, and the authors and their organizations strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have.  Terry can be reached at tkitay@kitaylaw.net and Nadeen can be reached at Nadeen.Green@ForRent.com.

Category: Disability Accomodations

About Nadeen Green: Nadeen Green has been an attorney since 1979. She has taught Fair Housing law to the multi-family housing industry since the Fair Housing Amendments Act when into effect in 1989. She has been asked to speak numerous times for the National Apartment Association and the Multi-Housing World annual conventions. Her reader-friendly articles on Fair Housing appear regularly in industry publications. Nadeen is proud to be Senior Counsel with For Rent Media Solutions, which offers print and online advertising products for all communities, whether through For Rent Magazine®, ForRent.com, Para Rentar, Senior Outlook, After 55, or specialized publications for condominiums and student housing. .

Comments (4)

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  1. Michelle says:

    I have a resident who insists that she be allowed to park in the fire lane “for a few minutes” and that all residents should be allowed to park in the fire lane “for a few minutes” for unloading purposes. She stated that she has emphazema, and it is better for her to park closer to her apartment for unloading. I offered her the garage closest to her apartment and she declined it, insisting on being allowed to park in the fire lanes. Her argument was that “moving trucks and maintenance vehicles park in the fire lanes from time to time and if they are allowed to do so, residents should be allowed to do so. I explained that vendors and maintenance have heavy equipment to transport and we can contact them to move their vehicles as we know whose vehicles they belong to, and that moving trucks need to be close to the apartments (as opposed to far away on the public street) or it would be very costly for all residents to have their belongings ‘walked in’ to the community from the public street. I explained that since she stated that she has a serious health issue, she should want the fire lanes to be open in the event emergency vehicles should need to come to HER aid. Somehow she does not see the reasoning behind this. After offering the closest garage to her apartment and her rejection of it, what more can a manager do? She tried to say that I was in violation of fair housing laws; I cannot see where I would be after reading the above Parking as a Reasonable Accommodation article. Any advice other than giving her a copy of this article?
    Thank you for your assistance.

    • Jessica Hawkins Nadeen Green says:

      I would like to suggest a two part analysis to you so that you do not run afoul of the law (keep in mind that I said “suggest” and not “advise” as what I will share with you is not legal advice). First, check with your local fire department. It is quite possible that allowing maintenance and moving vehicles in the fire lanes is a violation of your local fire safety code. If that is the case, then no vehicles are to be parked in a fire lane (even those vehicles belonging to people with disabilities). If the local fire safety rules are such that “temporary” parking is allowed for maintenance and moving vehicles, then there is no question at all in my mind that you will also have to allow it for people with disabilities. I am interested in what the position of the fire department is on this; perhaps you will come back and post on that so that we can learn from how this may turn out.

  2. denise parkerson says:

    what do you do when your apartment building has been infested with ants for seven months and spraying every month doesnt work? The ants are coming out of the light sockets in the wall, their in the kitchen, bathroom, bedrooms, crawing on my grandson’s bed. Hes had them on his body when he has came to visit. Two other tenants have moved out that live below them and above them.. My daughter lives on the second floor and has a newborn baby coming and the manager isnt concerned, she just keeps sending guys out to spray outside and in and it doesnt work? Can they break their lease and leave? Their lease isnt over until jan 2012.. for seven months now they have lived with ants infesting their food and i dont know where else to turn for help.. thanks

    • Nadeen Green Nadeen Green says:

      My goodness, you have certainly made Fair Housing Lady itchy! (Not witchy!) But all kidding aside, this sounds terrible, particularly because of the children. This is not, however, a fair housing issue (the ants have not chosen to harass you and you family members because of who you are) but it is a serious landlord/tenant issue. The landlord/tenant laws vary from state to state and Fair Housing Lady does not keep up with those. As a general rule (and not as legal advice which I never, ever give to readers) the more you have to show that this is a situation that has in effect “constructively evicted” you (i.e. made it impossible for you or your family to stay, no matter when the lease expires) the better your odds of leaving without incurring excess costs. So first, consider asking to be let out of the lease. If the landlord will not work with you on that, then have evidence of why you need to leave (photographs of the ant bites; doctor’s report regarding the ant bites; report from Health Department confirming the ant infestation) so that when you do leave you will not owe more rent than for a 30 days notice of your intent to vacate. Hope this helps – let me know if possible how this turns out.

      Sincerely, DFHL