by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

FAIR HOUSING; CONDOMINIUMS: Condominium association must set aside an exclusive parking space from designated general common elements to accommodate a disabled unit owner is entitled to have his condominium association.

Gittleman v. Woodhaven Condominium Association, Inc., 972 F. Supp. 894 (D. N.J. 1997).

A condominium association refused to grant an exclusive parking space to a handicapped unit owner because the Master Deed stated that parking spaces were to be non-exclusive common elements owned by all unit owners as tenants in common. As such, the condominium association claimed it was forbidden from taking any action that would diminish the proportionate undivided interest in the common elements held by each unit owner, and asserted that the only way to grant a particular parking space was by a two-thirds affirmative vote of unit owners. Such a vote was in fact taken but the handicapped unit owner did not receive the requisite number of votes. The unit owner then filed suit for relief under the Fair Housing Amendments Act which makes it unlawful to discriminate against any person in the provision of services or facilities in his or her dwelling because of that person's handicap. Under the Fair Housing Amendments Act, discrimination includes refusal to make reasonable accommodations in rules, policies, or services when they may be necessary to afford a person equal opportunity to use and enjoy a dwelling.

The U.S. District Court agreed that the parking spaces were non-exclusive and that two-thirds approval from the rest of the unit owners was required, yet maintained that the association was not powerless, and in fact was required by the Fair Housing Amendments Act, to grant an exclusive parking space. The Court held that the Master Deed and By-laws of the condominium gave power to the association to regulate use of the common elements. The Court then stated that any provisions of the Master Deed that violate the Fair Housing Amendments Act are unlawful and cannot be enforced, and that the association, as manager of the common elements, had an affirmative duty to ensure that the common elements were managed so as to comply with federal housing law. Accordingly, the Court held that the association was bound to regulate use of the common elements so as to comply with the Fair Housing Amendments Act and to avoid enforcing provisions of the Master Deed that have a discriminatory effect. Since application of the provision at issue would violate the Fair Housing Amendments Act, the Court refused to grant the association's motion for summary judgment. The Court also cited case law and legislative history of the Fair Housing Amendments Act prohibiting discrimination based on the enforcement of private agreements, such as a master deed.

Comment 1: On first blush, this case seems perfectly predictable to person familiar with the Fair Housing Act and its high priority for handicapped accommodation. In fact, however, the case addresses a vital aspect of condominium law and, at least as measured by a number of other cases, distorts that law in favor of federal enforcement.

For the condominium association to have the ability to provide an exclusive parking spot from the common elements to this individual, the association must have the power to do that. The court states that provisions of the "master deed" limiting the association's ability to reallocate common elements to individual use cannot validly limit that power. But where the court errs is in its assumption that the association, absent the limitation in the master deed, would have the power.

In fact, in a typical condominium the association does not own the common elements at all. It only has management authority over them as delegated by the owners of the common elements - the individual unit owners. The association's control over the common elements is not limited by the deed, rather it is created by the deed. And the only powers it has over those elements are those set forth in the deed. The court is ordering the association basically to use someone else' property in a manner the court views as consistent with the act. Arguably, this would be the equivalent of a court ordering a homes association in a subdivision to provide a parking space on ground owned by one of the lot owners in the subdivision. The homes association may have certain regulatory powers over that ground - architectural review or even use restrictions, for instance - but it does not own that ground any more than it owns the common elements in a condominium.

The cases dealing with condominium parking have almost uniformly held that an association can regulate parking in ways that affect all unit owners, but cannot allocate individual rights in parking for the benefit of one unit owner, as such a decision would amount to changing the ownership rights of all owners in the common elements.

Comment 2: Having stated that this case is inconsistent with almost every case on the subject, the editor adds that he believes that allocating individual use of a common element for a temporary period probably ought to be viewed as within the authority of the association and not as an abridgement of the ownership interests of the unit owners. The same collective decision making process that established such temporary exclusive use right could change the use right back again, and the change in use does not change the voting rights, assessment responsibilities, or any of the other burdens and benefits of ownership. There is an argument, of course, that the association members ought not to be collectively "taxed" through assessments to provide special privileges to one members, but this type of situation exists in condominiums already, as community assessments already provide for the maintenance of "limited common elements," which are commonly owned real estate rights allocated to one individual unit owner.

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