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by Janet Portman, Inman News
Law booksQ: We just rented an apartment in a condominium complex. We chose it because it’s accessible for my wife, who uses a wheelchair.
We were amazed when the condo owners’ association told us that we cannot have a close-in parking spot for our exclusive use.
Instead, they’re suggesting we use a visitor’s spot, which is wheelchair accessible, for pick-up and drop-off, and park permanently in the unit’s designated spot.
This spot is far away, on a slope, and next to a pillar — totally unsuited for wheelchair use. Is this legal? –Tom and Sally G.

A: If you were renting in an apartment complex, the answer would be a sure and swift “no!” Apartment communities must give disabled tenants close-in parking if they need it in order to live comfortably and safely on the property. This rule will trump any policies to the contrary, such as a “first-come, first-served” approach to allocating parking spots. If giving a disabled tenant a close-in parking spot means that someone else more senior will be delayed, so be it.

But your situation is a bit different. The condo you’re renting is part of a common-interest development. Typically, residents of these developments own their homes plus an undivided proportional interest (as tenants in common) in the common areas, such as the parking lots and recreation facilities. Condominium associations’ master deeds usually provide that the condominium’s parking spaces are for the non-exclusive use of unit owners. Your association may think that assigning you an exclusive, dedicated parking space would violate the deed provision and take away from the other tenants’ rights to use all of the common areas. If so, this type of change would require a material amendment to the master deed and approval by a specified percentage of the unit owners.

All of this is well and good, but for one thing: Even if the condo association is reading the deed correctly, the federal Fair Housing Amendments Act may still trump. The condo association cannot enforce any aspect of the master deed that, on its face or as applied to a particular situation, violates federal law. (Gittleman v. Woodhaven Condominium Ass’n, Inc., 972 F.Supp. 894 (D.N.J. 1997).) This proposition isn’t so new — it was the basis for using civil rights laws to invalidate the “whites only” provisions that used to appear in some master deeds. No matter what the master deed says, you are entitled to a dedicated parking spot by virtue of the superior authority of the federal fair housing law.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at [email protected].Copyright 2009 Janet Portman

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  • Steve

    Laws vary from state to state. It is most definately not a swift no. In the stae we operate. Construction of buildings with less than 20 units does not require handicapped parking spaces. However, Federal Fair Housing Laws do come into play in many instances and require accessability on site with conditions which make it possible to provide accessibility with certain standards. Look into local zoning ordinances and Federal Fair Housing Standards an ADA standards to see which would apply to your situation.

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