HOAs required to permit construction of accessible structures

My theory is that homeowners associations (HOAs) are run by the same people who bullied their fellow students in high school for not wearing the right brand of jeans.   Only now they have power over the house you bought and live in.

This post is about the Fair Housing Act and the fact that it requires landlords and HOAs to make reasonable accommodations in their policies and to permit residents to make reasonable (physical) modifications to property at their own expense where necessary because of the resident’s disability.* HUD and the DOJ have collaborated on excellent explanatory memos on both reasonable accommodations and reasonable modifications.   [Both pdf.]

Seth and Lisa Moates lived in a development called Plantation Oaks** outside of Montgomery, Alabama.   Mr. Moates uses a manual wheelchair, but was moving toward having to use a power chair which, in turn, would require a lift-equipped van.   The Moateses wanted to build a garage to fit their new van as well as Mr. Moates’s therapy equipment.   Of course, they couldn’t just build the structure they needed for Mr. Moates’s disability.   They lived in an HOA community, in which an “Architectural Review Committee” asserted power over decisions like this.   And of course

[t]he ARC denied the Moateses’ initial request on April 8, 2013 for the stated reason that alternate garages and structures were inconsistent with the other Plantation Oaks homes and not in the best interest of the neighborhood.***

That’s right, Mr. Moates, you can’t park your new van in a garage or store your therapy equipment because that would not be “in the best interest of the neighborhood.”   And just to be sure nothing as tacky as a van-accessible garage ever besmirched their plantation, “[t]he Covenants were changed to make the building requested by the Moateses prohibited.”****   You see, originally you just needed special permission for your van accessible garage, but now, in response to the request, that garage and others like it are simply prohibited.

The HOA finally relented after the Moateses reduced the size of the planned garage, BUT only on the condition that, when they sold the house, they demolished the garage and returned the property to its original, pristine, plantation-like***** condition.

The ensuing lawsuit is only at the motion to dismiss stage, but generated a well-reasoned decision denying the motion.   The judge noted that “equal opportunity to use and enjoy [a] dwelling” means

that handicapped[******] people must be afforded the same (or “˜equal’) opportunity to use and enjoy a dwelling as non-handicapped people.   . . . [O]thers in the neighborhood are allowed to park their vehicles in garages, thus affording protection.  Affording Mr. Moates a similar opportunity by allowing a larger garage wherein he can park his car, in the same way as his neighbors, plausibly will grant Mr. Moates the same peace of mind and security as everyone else in Plantation Oaks.

Luckily the Moateses have connected with a good attorney and the Central Alabama Fair Housing Center and filed suit.   The HOA — rather than coming to its senses, doing the right thing, and avoiding imposing attorneys’ fees for its stupidity on everyone else in the plantation, er, development — is fighting the suit, arguing not only that it did not violate the Fair Housing Act, but that the Moatses were not injured (did not have standing) and that the suit isn’t ripe for review because the new power wheelchair hasn’t arrived yet.

The judge properly denied those arguments in his well-reasoned decision; I would have been tempted to deny them on the grounds of “gimme a break!”

In this case and so many others, you really shouldn’t need a federal law to make the HOA do the right thing.   All it should require is a bit of common sense   . . . and the realization that we don’t all have to wear the same brand of jeans.

**********************

*   42 U.S.C. § 3604(f)(3)(A) & (B).

** I swear I did not make up the name.

*** Moates v. Plantation Oaks Homeowners’ Ass’n, 2013 WL 5532626, at *2   (M.D. Ala. Oct. 7, 2013).

**** Id.

***** Slight editorial license.

****** Unfortunately, the Fair Housing Act still uses this terminology, so lawyers and judges have to follow suit.