CharlesH9
(Michigan)
Posts:82
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| 05/15/2008 3:12 PM |
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Glen and others
I read your reply with the link to the postion of FHA and I had some quesitions that maybe you or others could answer. I gathered from the site that reasonable modifications shouldn't cost more and that HOA's should make an accomodation even if it might upset what they may have as a rule. What I am asking specifically is about a fence that someone in our association asked for that was denied based on material and the association wants a more expensive fence. Do you think the fence should have been approved given that the association knew of the disability before denying it? |
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GlenL
(Ohio)
Posts:1470
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| 05/15/2008 3:57 PM |
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| Charles first off I'm not an attorney so take what I or anyone else posts here at face value. What type of fence and what type of disability would require a different type of fence than anyone else in the HOA has? |
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BrianB
(California)
Posts:1748
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| 05/15/2008 5:57 PM |
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| i am curious to learn the answer to that too Glen... |
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JC3
Posts:290
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| 05/15/2008 6:23 PM |
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| Maybe it's because the disabaled person has a limited income that barely covers expenses, and this is what he can adford. |
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CharlesH9
(Michigan)
Posts:82
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| 05/15/2008 7:25 PM |
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I completely understand about the attorney thing so I take these reponses as just opinions or thoughts.
The fence that was being sought was a "maintenance-free" vinyl coated chain link. The FHA/ADA/HUD document or whatever we are calling it said "If the housing provider (HOA in this case) requires more costly materials be used to satisfy her (I don't know why they used the word her) workmanship preferences beyond the requirements of the applicable local codes, the tenant must only agree if the housing provider pays for those additional costs as well" I am sure wood fences are allowed in this locality, but not by the HOA. They want maintenance free but not vinyl coated chain link. The beginning of that paragraph states "If the housing provider wishes a modification to be made with more costly materials in order to satisfy the landlord's aesthietic standards, the tenant must agree only if the housing provider pays those additional costs.
As for the disability, it is for a hearing impaired, autistic child's back yard to play in. All of the surrounding neighbors have dogs with electric fences that obviously don't keep the child out, only the dog in. There is a play structure in the child's backyard. The HOA does allow fences and this one wouldn't be the first in a single family detached HOA with pretty good size yards. The materials were the only reason for the denial. |
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BrianB
(California)
Posts:1748
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| 05/15/2008 10:08 PM |
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first, what document are you getting your quote from? I know of no statute or law that uses the word "her" in it. Is this from a court order? Lawsuit?
Second, the ADA rarely ever applies to HOA's. Are you sure this is an ADA issue?
Third, what does FHA mean in your issue? Farm Home Administration? Fair Housing Act? Both of them might be applicable, both of them might not be applicable.
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GlenL
(Ohio)
Posts:1470
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| 05/15/2008 11:16 PM |
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Brian he's referencing the joint HUD & DOJ paper on: Reasonable Modifications Under the Fair Housing Act. It does actually use the pronouns his & her in its examples.
http://www.usdoj.gov/crt/housing/fairhousing/reasonable_modifications_mar08.pdf |
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GlenL
(Ohio)
Posts:1470
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| 05/15/2008 11:26 PM |
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If I'm reading this right the HOA only allows fences of one type but the H/O wants them to make accommodation and allow her to put up a different type of fence because it's cheaper. I honestly do not have a guess on how the law would side. Just out of curiosity what is the price difference? A 6'X6' section of vinyl privacy fence is about $109 uninstalled at a home improvement store but I couldn't find a quote for the vinyl chain link. It seems to me that the chain link although it may be cheaper would be easier to climb. I would suggest contacting HUD directly and asking them, contact info is on their website www.hud.gov.
There are also some news articles on HOA fence rules and kids with autism:
http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_5212952,00.html
http://www.newsobserver.com/152/story/558309.html
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CharlesH9
(Michigan)
Posts:82
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| 05/16/2008 2:47 AM |
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| 6' fences are not allowed according to the decleration, it states maintenace free and lists the examples of pvc, aluminum and vinyl. Well one document, the decleration states vinyl coated chain link and another, not the decleration but some architectural rules just say vinyl. Couldn't the homeowner ask for a wood fence since the local ordinance allows for it and let the HOA pay the difference since they denied the vinyl one? Vinyl coated chain link was what was asked for originally though. |
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CharlesH9
(Michigan)
Posts:82
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| 05/16/2008 2:53 AM |
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| Sorry I forgot the question of price difference. I think about 4-5000 from vinyl c.c.l. to 8-9000 for pvc vinyl kind of stuff. The wood fences of 3.5' tall and 8' long sections are $24.oo at Lowes this week. The fence can't be taller than 4'. |
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DonnaS
(Tennessee)
Posts:2951
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| 05/16/2008 10:00 AM |
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Charles,
Sometimes we just have to bite the bullet and follow what the ARC or documents state is allowed for fencing.Those rules or covenants were made to be followed. A wooden fence is not allowed. A 6 foot is not allowed. It says vinyl or maintenance free for a reason. I just don't get it why anyone applying for a different type of fence, other than what is required, can't understand that their application does not fit into the requirements. Disability should not have anything to do with this arguement. |
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GlenL
(Ohio)
Posts:1470
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| 05/16/2008 10:03 AM |
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| Will a 4' fence contain him as he grows? As long as he's not a climber or has the "runner" type of autism in which case a taller fence would be a reasonable accommodation of his condition. IMO if the vinyl C.C.L. is specifically mentioned as an allowable type of fencing material in the declarations then the BOD/ACC is opening itself up to all kinds of problems by denying it. |
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DonnaS
(Tennessee)
Posts:2951
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| 05/16/2008 10:26 AM |
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Brian,
This is probably from case someplace where a "tenant" has requested a different fence. It says "THE HOUSING PROVIDER", which in this case is not applicable because the HOA is NOT the provider.
The fence that was being sought was a "maintenance-free" vinyl coated chain link. The FHA/ADA/HUD document or whatever we are calling it said "If the housing provider (HOA in this case) requires more costly materials be used to satisfy her (I don't know why they used the word her) workmanship preferences beyond the requirements of the applicable local codes, the tenant must only agree if the housing provider pays for those additional costs as well" I am sure wood fences are allowed in this locality, but not by the HOA. They want maintenance free but not vinyl coated chain link. The beginning of that paragraph states "If the housing provider wishes a modification to be made with more costly materials in order to satisfy the landlord's aesthietic standards, the tenant must agree only if the housing provider pays those additional costs.
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BrianB
(California)
Posts:1748
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| 05/16/2008 10:40 AM |
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Charles, what type of properties are we talking about here? Single family detached homes? apartments? Condos? duplexes? what is the nature of your HOA?
i ask because key sections of the FHA doesn't apply to some homes:
b)Nothing in section 804 of this title (other than subsection (c)) shall apply to--
(1) any single-family house sold or rented by an owner: (with some caveats).
The reasonable accomodation portion of section 804 is NOT section C, and thus, might be exempt from consideration under the act in some cases.
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MikeS1
Posts:0
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| 05/16/2008 12:37 PM |
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| Bryan - Good question, It's my understanding from working with our HOA attorney that the FHA rules ususually only apply to Condominiums and Apartments, but do not apply to Single Family homes (attached or detached). |
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CharlesH9
(Michigan)
Posts:82
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| 05/16/2008 12:40 PM |
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| That's the problem. A 4' vinyl coated chain link fence in one of the two colors allowed was denied. So now what?? The BOD didn't like the material and wanted pvc or aluminum. Shouldn't they pay for it based on the HUD/DOJ document? |
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CharlesH9
(Michigan)
Posts:82
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| 05/16/2008 12:42 PM |
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| Single family detached homes and thanks for the replies from everyone. |
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CharlesH9
(Michigan)
Posts:82
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| 05/16/2008 12:53 PM |
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Donna,
These are the 3 areas I was concentrating on regarding this. I could be totally wrong about this language, but it just seems simple to me, but not sure on the single family detached part.
The Act makes it unlawful for a housing provider or homeowners’ association to refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises.
The Act also makes it unlawful for any person to refuse “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford ... person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.”
If the housing provider wishes a modification to be made with more costly materials, in order to satisfy the landlord’s aesthetic standards, the tenant must agree only if the housing provider pays those additional costs. Further, as discussed in Questions 21 and 23 below, housing providers may require that the tenant obtain all necessary building permits and may require that the work be performed in a workmanlike manner. If the housing provider requires more costly materials be used to satisfy her workmanship preferences beyond the requirements of the applicable local codes, the tenant must agree only if the housing provider pays for those additional costs as well.
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DonnaS
(Tennessee)
Posts:2951
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| 05/16/2008 1:07 PM |
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Charles,
Where exactly is this quoted from? The first statement seems pretty clear and easy to understand but this will depend on where this is taken from.
Thanks |
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CharlesH9
(Michigan)
Posts:82
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| 05/16/2008 1:13 PM |
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Donna,
GlenL posted this link in another discussion and peeked by curiousity about a situation where I live. Here is the link again. I just gave very minimal info. from the 18 page document. Thanks.
http://www.usdoj.gov/crt/housing/fairhousing/reasonable_modifications_mar08.pdf |
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BrianB
(California)
Posts:1748
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| 05/16/2008 1:15 PM |
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CHarles, if you are talking about the Fair Housing Act, you need to read it more carefully.
Sec. 803. ⎶ U.S.C. 3603] of the fair housing act states:
(b)Nothing in section 804 of this title (other than subsection (c)) shall apply to--
(1) any single-family house sold or rented by an owner: Provided, That such private individual owner does not own more than three such single-family houses at any one time: Provided further, That in the case of the sale of any such single-family house by a private individual owner not residing in such house at the time of such sale or who was not the most recent resident of such house prior to such sale, the exemption granted by this subsection shall apply only with respect to one such sale within any twenty-four month period: Provided further, That such bona fide private individual owner does not own any interest in, nor is there owned or reserved on his behalf, under any express or voluntary agreement, title to or any right to all or a portion of the proceeds from the sale or rental of, more than three such single-family houses at any one time: Provided further, That after December 31, 1969, the sale or rental of any such single-family house shall be excepted from the application of this subchapter only if such house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B) without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of section 804(c) of this title; but nothing in this proviso shall prohibit the use of attorneys, escrow agents, abstractors, title companies, and other such professional assistance as necessary to perfect or transfer the title, or
(2)rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.
When you go to section 804 to see the ONLY paragraph that single family homes are required to follow, you find:
Sec. 804. ⎶ U.S.C. 3604] Discrimination in sale or rental of housing and other prohibited practices
c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
So basically, a single family home isn't covered by the FHA except when the owners have lots of homes, EXCEPT that ALL single family home owners cannot print/publish a discriminatory remarks about who they will rent/sell to.
the section of the act you quote is section 804 (f) from which single family homes are exempted.
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MaryA1
(Arizona)
Posts:2504
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| 05/16/2008 3:05 PM |
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| Issues that arise that may apply to FHA or ADA law is best left to the interpretation of an attorney. |
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GlenL
(Ohio)
Posts:1470
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| 05/16/2008 3:39 PM |
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While the link I posted does deal mainly with condos and apartments I think Charles is referring to this passage (Capitalization by me):
What is a reasonable modification under the Fair Housing Act?
A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and EXTERIORS of dwellings and to common and public use areas. A request for a reasonable modification may be made at any time during the tenancy. The Act makes it unlawful for a housing provider or
HOMEOWNERS’ ASSOCIATION to refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises.
To show that a requested modification may be necessary, there must be an identifiable relationship, or nexus, between the requested modification and the individual’s disability. Further, the modification must be “reasonable.” Examples of modifications that typically are reasonable include widening doorways to make rooms more accessible for persons in wheelchairs; installing grab bars in bathrooms; lowering kitchen cabinets to a height suitable for persons in wheelchairs; adding a ramp to make a primary entrance accessible for persons in
wheelchairs; or altering a walkway to provide access to a public or common use area. THESE EXAMPLES OF REASONABLE MODIFICATIONS ARE NOT EXHAUSTIVE.
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SusanW1
(Michigan)
Posts:2316
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| 05/16/2008 3:50 PM |
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"The Act makes it unlawful for a housing provider or
HOMEOWNERS’ ASSOCIATION to refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises." quoted
The HOA has not denied the request for the fence; it has placed restrictions on the building materials used. I think he is trying to make the case that the required fence material is a hardship, financially.
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GlenL
(Ohio)
Posts:1470
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| 05/16/2008 3:59 PM |
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He also states that the fence the H/O wants is specifically mentioned in the declarations as an approved type. If that is the case the BOD is going against the governing documents, picking on a person with a disability almost a perfect combination to create a giant legal mess for the HOA. If the BOD no longer wants this type of fence then they need to amend their documents until then they need to honor them.
Charles a phone call to the local "Action News Investigative Reporter" might help speed things along.
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BrianB
(California)
Posts:1748
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| 05/16/2008 5:25 PM |
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Posted By GlenL on 05/16/2008 3:39 PM
While the link I posted does deal mainly with condos and apartments I think Charles is referring to this passage (Capitalization by me):
What is a reasonable modification under the Fair Housing Act?
A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and EXTERIORS of dwellings and to common and public use areas. A request for a reasonable modification may be made at any time during the tenancy. The Act makes it unlawful for a housing provider or
HOMEOWNERS’ ASSOCIATION to refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises.
To show that a requested modification may be necessary, there must be an identifiable relationship, or nexus, between the requested modification and the individual’s disability. Further, the modification must be “reasonable.” Examples of modifications that typically are reasonable include widening doorways to make rooms more accessible for persons in wheelchairs; installing grab bars in bathrooms; lowering kitchen cabinets to a height suitable for persons in wheelchairs; adding a ramp to make a primary entrance accessible for persons in
wheelchairs; or altering a walkway to provide access to a public or common use area. THESE EXAMPLES OF REASONABLE MODIFICATIONS ARE NOT EXHAUSTIVE.
This is a quote from an FAQ pamphlet, NOT the actual code/statute itself. I quoted from the STATUTE itself, and single family homes are (typically) EXEMPT from the requirement to allow "reasonable accomodation".
THIS FAQ answer would be absolutely correct if the HOA were one that covered duplexes, condos, apartments, etc., but NOT a single family home under an HOA. THe HOA in question is over SINGLE FAMILY HOMES, which is specifically spelled out in section 803 of the Fair Housing Act as EXEMPT from compliance with everything in section 804 except section C... and this isn't section C.
actual LAW takes precedent over policy documents, FAQ's, and helpful pamphlets. |
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BrianB
(California)
Posts:1748
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| 05/16/2008 5:27 PM |
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Posted By SusanW1 on 05/16/2008 3:50 PM
"The Act makes it unlawful for a housing provider or
HOMEOWNERS’ ASSOCIATION to refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises." quoted
The HOA has not denied the request for the fence; it has placed restrictions on the building materials used. I think he is trying to make the case that the required fence material is a hardship, financially.
it doesn't make a difference what the owners point is, the fact remains that the HOA is exempt from the "rule" that is being cited.
Section 803 of the Fair Housing Act exempts single family homes from compliance with the portion of section 804 that requires reasonable accomodation. it does so quite plainly. |
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GlenL
(Ohio)
Posts:1470
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| 05/16/2008 5:44 PM |
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| Brian which id why I advised: I would suggest contacting HUD directly and asking them, contact info is on their website www.hud.gov. |
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CharlesH9
(Michigan)
Posts:82
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| 05/16/2008 6:24 PM |
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The HOA had a vote to ammend the decleration to not allow vinyl coated chain link fences and to allow 6' privacy fences. It didn't pass by the time the request was made for the fence. 2 days after the request, the person who wanted the 6' fence walked around a petition for their fence and also includes in it to not allow the v.c.c.l. fences any longer. They get enough signatures and the BOD denies the fence request 30 days later. Meanwhile the "ammended" decleration is never filed. The decleration does have a clause in it about the procedure for ammendment. The document may not be ammended for x number of years and it is not even close to that yet.
I looked at the cases involving the autism children and here are the results of one. I don't know if the other has gone to court yet. But the courts decided that the FHA does apply to single family detached homes and HOA's.
http://www.ccdconline.org/legal/southbridge.htm
Also here is a case in Michigan with the same wording in the decleration about the number of years to ammend and it stood up in court.
http://courtofappeals.mijud.net/DOCUMENTS/OPINIONS/FINAL/COA/19981211_C204954%280033%29_204954.OPN.PDF
So next move is HUD I guess, or what was the other option??? Oh yea the Action News Investigative Reporter. Thank you to all with your input, I appreciate hearing all views. |
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BrianB
(California)
Posts:1748
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| 05/16/2008 8:47 PM |
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Posted By CharlesH9 on 05/16/2008 6:24 PM
But the courts decided that the FHA does apply to single family detached homes and HOA's.
http://www.ccdconline.org/legal/southbridge.htm
Charles, i must disagree with your statement. The link you provided (above) does not lead to a court decision on the matter. In this case, NO COURT ANYWHERE said that the FHA law applied to an HOA/Single Family Detached home.
In this case, a settlement was reached. When a settlement is reached, it means the court NEVER DECIDED. Had the court decided, a JUDGEMENT would have been made.
Settlement does not equal court decision. In this case, the HOA agreed to sign on the dotted line, for whatever reasons.
Call HUD. Point out to the helpful person section 803 of the code, then ask them what it means. Specifically make them read section 803, then 804 and ask them for their opinion.
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