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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 91769
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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Hello: I need to have your help to clarity of the rights to wheelchair bound, handicapped residents of the City of Alexandria, VA to "VAN Accessible" parking or, more specifically, parking spaces next to "hatch line" areas to enable City residents to approach their vehicle, take down and reassemble wheelchairs so that they may enter and exit the vehicle unimpeded. I need to know if my husband has any right under ADA, Fair Housing or City laws that allow him to be assigned a specific parking space next to a "hatch lined" area because he is confined to a wheelchair. We are residents in a large condo complex in the City of Alexandria and, according to a new ruling set forth by the Board of Directors of the Condominium Unit Owners Association subject to City laws for disabled, handicap and VAN Accessible parking vs any Association or real estate rules that may govern the same issue on private property. We bought our condo five years ago--there were two garage spaces included with the originally planned purchase but because my husband could not make use of either space that accompanied the condo, we told the sellers that we wanted only one of the spaces and the second space was sold to another resident. My husband is a paraplegic, paralyzed from mid thorax downward as a result of a spinal cord injury 20 years ago. He resides in a wheelchair. He is 70 years old. Post accident, in order for him to return to work and new form of living, he was taught to drive a car with hand controls and to take down and reassemble his wheelchair to stow in the back seat of a two door vehicle while he was a patient at the National Rehabilitation Hospital in Washington DC. The same skills were taught to individuals who were quadriplegic but had ability of movement and strength of their upper extremities due to the location of their spinal cord damage and did not want to or could not mange driving a van; other patients chose vans for personal reasons. The patients had a choice of the type of personal use vehicle they would learn how to drive. One year ago, our condominium Association Management began allocating exclusive "VAN Accessible" parking spaces to wheelchair bound residents with vans. My husband wrote to the Property Management to request a handicap space next to a "hatch line" area based on equal need: room for him to enter and exit his vehicle with his wheel chair--so that he could perform activities of daily living. His car and his wheelchair are his only means of mobility. Property Management informed him there was no formal process for granting of "reasonable accommodation", and requested he write to the Property Management and the Association Board of Directors to explain the rationale for need of a parking space next to a "hatch lined" area in order to have unobstructed, consistent access to his vehicle, space to take down and reassemble his chair as necessary to drive his car. The space was granted. Now, due to a change in Property Management policy, generated by the Association Board of Directors to provide fair and equal access to handicap parking spaces under Alexandria City laws for reasonable accommodation, my husband was told he had to either surrender his handicap parking space or sign his rights to the garage parking space back to the Association for their disposition and use at their discretion. He was told he could either use the designated space he had been granted or the garage space we "own" but not both. He was told by Property Management that he must park his vehicle in "other handicap spaces" or in the common area parking to assure equal treatment of all handicapped residents under laws. He is unable to use the garage parking space because there is no room for him to enter or exit his vehicle with his wheelchair--the decision was made to surrender the handicap parking space leaving him to search for parking spaces in the common area of parking that were wide enough to accommodate access and wheelchair takedown Handicapped residents with vans who do not "own" a garage space are not affected by the new management initiative; they can remain in the VAN Accessible slot because not having it assigned means that they will have to occupy two parking spaces. Unless there is a parking space next to a water run-off area near our building, which are wider than other parking spaces, he is limited if not prohibited from use of his vehicle without (1) being subject to assistance from Patrol Services to locate the resident whose vehicle is in the space next to his to move their vehicle or (2) have an ambulatory person unlock and back his car out of the parking space so that he may enter and or exit the driver's side door if I am not available to assist him. Do you have any suggestions to guide us through this issue? My husband has the same challenges that any spinal cord injured driver has--the same challenges that van driver's experience. Kind Regards, XXXXX XXXXX Kercher

Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

What you are describing is a violation of the Americans with Disabilities Act and them saying there was no process to provide a reasonable accommodation all by itself was a violation of the ADA. The board must provide him a reasonable accommodation based on his specific disability, so they cannot treat all handicapped people identical as all disabilities are not the same.

This is also a violation of the Fair Housing Act and there was a similar suit from a wheelchair bound VA resident who won an award of $65,000 against a management company/Condo complex for denial of an appropriate reasonable accommodation for parking. See: VA Man wins $65,000.

Thus, you need to demand your husband's rights and you need to file a complaint with HUD for a violation of the FHA and also consider suit under the ADA if they will not provide him an appropriate accommodation based on his chair and not whether or not he has a van.



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Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 91769
Experience: Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
Law Educator, Esq. and 7 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for the information which is most helpful. We had a time limit for response regarding our parking "choice" imposed by the Board of Directors and have surrendered the assigned handicap parking space. We intend to meet with the Board of Directors and Property Management and my next concern is that when I bring the facts you gave me to the Board of Directors, I am certain that they will reply that they gave my husband reasonable accommodation by allowing him the choice to either keep his assigned handicap space or the garage space--but not both-- the issue is now that he could have the assigned handicap space but ONLY if we agreed to sign the rights to the garage space that we own over to the Association for discretionary use. It seems that if we had elected to keep the handicapped space, we literally would have "purchased" $12K worth of rights for handicapped parking in a "common area" that could be revoked when a new Board of Directors is elected--the $12K we spent on the garage parking would be "gone" because we had to sign it over to the Association who would, in return, lease it to another resident. You have given me rationale to defend the rights for the assigned handicap space in the common area but I don't know how to defend keeping the parking space we own and the assigned handicap space ---because he cannot access the garage space or his vehicle in the garage space. The building is 35 years old so not subject to ruling of 1991. Can you help me to defend both issues? Again, I feel like we are being robbed by having to choose between a space we paid for and a space in a common area that the next Board of Directors could revoke at will.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your follow up.

At this point, before you ever meet with the board, you need to file your FHA complaint with HUD and pursue the board on this level. Furthermore, making you sign over rights for something you paid for in exchange for giving you a handicapped spot you could use could be defended by the association, but not to give you something you could not use. You could only fight to keep the garage space and a proper handicapped space if you bought two spaces and they are making you give up both spaces for the handicapped spot. You can only defend not giving up the spot if they refuse to give him a proper spot he can use or if they are no going to guarantee him a properly accessible spot (or the two spaces issue).

The botXXXXX XXXXXne is it is against the FHA and ADA for them to not give him a spot he can use to get his wheelchair in and out of the car regardless of the fact he does not use a van and this is a reasonable accommodation they have to provide.
Customer: replied 1 year ago.
If I understand your statement, I can only defend our keeping the space we purchased if Management refuses to give my husband a proper handicapped spot he can use or if they are not giving a guarantee him a properly accessible spot. My hopes were to meet with the Board of Directors to determine if they would assign him one of five larger parking spaces in the common area, not specified as a handicapped , but wider due to the fact they are near water run off areas. These spaces, when available are where he currently can park his car with access space for wheelchair . If they could assign him one of these common area spaces --not considered "van specific " or handicapped as they are across one driveway from the building front, our problem would be solved. With this course of action , we would wait to contact HUD until the Board of Directors decision-- or is it still your recommendation that we file a HUD complaint before we meet with the Board of Directors?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your follow up.

If you are agreeable to your proposal and you think the Board will agree, then trying to resolve this by meeting with the Board before making your HUD complaint would be a reasonable course of action.

The way the court would look at the giving up the garage space as an exchange if they promise you another reserved space. If they refuse, then you have a very good argument against them.
Customer: replied 1 year ago.
Thank you . If I understand correctly, this plan will be most helpful in clarifying that by not giving us an option he can use and revoking their decision of one year ago to grant him his exclusive space they have not provided him reasonable accommodation as due and we will go forward with a HUD complaint filing. Your time, answers and recommendations have been most helpful. Thank you. Hope I have it right.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you very much. Yes, if they are not giving him a space that accommodates his disability you need to go forward with the HUD complaint and consider the FHA and ADA suit if HUD cannot get a settlement on your behalf.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 91769
Experience: Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
Law Educator, Esq. and 7 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

I am back with additional thoughts and I need your help with more clarification regarding (1) reasonable accommodation and, ( 2)specific circumstances about parking in our condo development.


 


I understand the rights under ADA and FHA as you have explained them to me and will use them to fight for an appropriate parking space for my husband. But after reading your interpretation of a course of action about the loss of a parking space we paid for—I am really confused. Recall that the Association of Condominium Unit Owners Board of Directors required us to surrender to them our rights to a parking space in the garage for which we paid $12K in order to keep an exclusively assigned handicapped parking space: they stated we could not keep both spaces.


 


Less than a year ago,the previous Board of Directors had approved the Property Management’s request on behalf of my husband to grant him an exclusive van accessible slot to allow access space to enter and exit his car with his wheelchair. The grant was approved and the space was his until one week ago because we have a new Board of Directors who have revoked the grant; we did not agree nor will we surrender our garage space and have returned the van accessible slot to the common area (took down our permit sign). We paid for the garage space four years ago and shall retain it; we have lost trust in Property Management and the Board of Directors due to their latest decision that has resulted in the loss of my husband’s freedom of mobility.


 


My husband now has had to return to the same set of conditions he was in a year ago—the daily sorting of where he can park his car due to limited availability of wheelchair accessible parking and the narrowness of the standard disabled slots.


 


IF we had given the rights to the garage space that we own to the Association and kept the exclusively assigned outdoor slot, we would have essentially paid $12K for the space while other handicapped residents parked beside us in their vans at no cost-- in a van accessible handicapped space marked for their exclusive use. Handicapped spaces are in the common area; because we paid nothing nor were we charged for the exclusively assigned handicapped space, logic would follow that the resident using the assigned space next to us has not paid the Association for the privilege either---yet we would have given up a $12K parking spot.


 


When we bought our condo, there were two garage spaces included in the package--each priced at $12K. We bought one of the spaces for $12K, which was included in our mortgage. The condo seller sold the second garage space to another resident for $12K; we declined the offer of the remaining space because neither allowed wheelchair access to vehicles. I use our space to park my car.


 


IF I understand and apply the FHA and ADA correctly then there are two scenarios that do not seem quite fair. They are as follows:



  • Scenario (#1) IF a wheelchair bound buyer who drives a van buys a condo that has a garage parking space included in the purchase, then the buyer can use the garage parking space at their discretion. Even though the buyer is unable to use the garage space because of their handicap and lack of access to their vehicle, they could sell or lease or rent the garage space for their financial gain AND at the same time, require a designated van accessible handicapped parking spot in the common area so that the condominium development would remain compliant with FHA and ADA for reasonable accommodation.


 



  • Scenario (#2) IF the same wheelchair bound buyer referenced (#1) who drives a van buys a condo with NO garage space included with the purchase, the condominium development would still be required under FHA and ADA to provide reasonable accommodation for van accessible handicapped parking in the common area.


 


In accordance with FHA and ADA, residents of our condo development who are handicapped may park in any spot designated for handicapped use, including a van accessible spot. Residents driving vans either park in a van accessible spot or occupy two to three parking spaces so that their chair ramp can be lowered to an access area to enter and exit the vehicle. Because parking in the common area is at a premium, handicapped drivers are encouraged by Patrol Services to park in a space that is not labeled van accessible. Each of the four buildings in the development has two to three van accessible spots for every 22-23 parking spaces. Currently, at least four residents of the handicapped population who drive vans have exclusively assigned parking in a van accessible space.


 


Since we did not pay for but were granted exclusive use of a van accessible space for wheelchair access, it follows any wheelchair bound resident who bought a condo and drives a van and parks in the common area pays nothing for the space because they drive a van-- and if the space is exclusively assigned by Property Management to the handicapped resident, we now question if there is a monthly assessment fee paid by the occupant---as we did not pay any fee for the space assigned to my husband. We must, however, pay the Association Property Management an additional $20 per month assessment fee for the use of the garage space we bought.


 


With the circumstances we have presented, it seems that the Association has failed to provide reasonable accommodation for my husband to have wheelchair access to his car. After examining several scenarios, circumstances suggest that wheelchair bound van owners are given preference to van accessible spaces because to park elsewhere would involve the use of two or more slots in the common area parking where spaces are at a premium, limited and un-reserved.


 


In order to provide reasonable accommodation for my husband and for him to have handicapped access equal to other wheelchair bound residents who drive a vehicle, one of the following options must be considered.


 


The Property Management and Board of Directors may:



  • (1) (a) pay us $12K for rights to our garage space, (b) designate a van accessible slot exclusively for my husband’s vehicle and (c) sign an agreement allowing irrevocable rights to my husband for his exclusive use of the van accessible slot--- or

  • (2) (a) make exception to any rule negating exclusive assigned use of parking in the common area; (b) agree to grant my husband a reserved, exclusive parking space of his choice, in the common area, near the front of the building, not among the current lined or hatched lined handicapped spaces and (c) allow us to keep our garage space.


 


If the handicapped van owners do not pay an assessment fee or a purchase price for an exclusively reserved handicapped space in the common element, then we are being treated differently based on the same disability and penalized for the type of vehicle my husband chose to learn to drive.


 


If handicapped van owners who own garage space and are secured a van accessible slot according to ADA and FHA, then according to the Acts we are being treated differently because my wheelchair bound husband has been told he must surrender a $12K garage space we own to the Association in exchange for a van accessible slot he should have been assigned through reasonable accommodation.


 


Spinal cord injured drivers have a choice what vehicle they will learn to drive while in the rehabilitation setting. My husband chose to drive a small car but he has the same challenges as van drivers and is not receiving equal treatment or consideration by the Association or Property Management.


 


Please advise me if I am correct in my understanding and application of the FHA and ADA with regard to reasonable accommodation. Please advise me if my approach to saving my parking space and not losing $12K would carry any weight under condominium laws.


 

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response and further clarification of the garage spot issue.

If you paid for a garage slot and there are others who pay for a garage slot and also use the other parking spots in addition to the garage slot, you should not have to give up the spot that you paid for without compensation and they cannot just take the space from you because you paid for the garage space. They could only take the garage space if they are also charging for the non-garage parking as well and then it would be a quit pro quo or a swap of one parking space for another parking place.

If this was not the case and people do not pay for the outside spaces, then it would be improper to take your $12K spot without compensating you and that would be grounds for suit as well.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 91769
Experience: Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
Law Educator, Esq. and 7 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for your help. We will see what the Association has to say to us before we discuss what wrongs they have done. If they do not agree to one of our proposals, we will go forward with a HUD complaint and consider suit under FHA or ADA. Appreciate your time and quick responses.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you.

They may not realize it but the FHA violation and ADA violation could cost them much more money than they may think as these violations can hit an association with $50K-$100K in penalties to the victim.
Customer: replied 1 year ago.

 


I just read through what I could understand of the Virginia Condominium Act and it seems to say that Condominium Unit Owners Associations through their Board of Directors have the right to determine how limited common area spaces are used by unit owners. The space in the limited common area conveyed with our condo unit when purchased.


 


Under the Virginia Condo Act, can the Board of Directors force us to return our garage space to the Association for use at their discretion, lose the $12K in order accommodate my husband's disability--which he is already allowed under ADA and FHA?


 


I have contacted you, the ADA and HUD--who all state that by removing my husband's wheelchair accessible parking, the Association is in violation of the FHA and ADA. I have filed a report to the intake office at the City of Alexandria Office of Human Rights for discrimination based on disability and await their response to determine if we really have a valid complaint; I filed a report after reading the Virginia Condominium Act 2007. We did not pay the Association to use an exclusive handicap parking space that was assigned to my husband therefore neither do the vans parked in the exclusively reserved van accessible slots. Yet we are told we must give up the handicapped accessible space OR lose $12K that we paid for the garage space.


Do I need a lawyer before I speak to the Association Board of Directors? or do we really have any rights under the Virginia Condominium Act? My husband refused to sign over the garage space and lost his exclusively assigned parking because of the money we would lose if we signed a Licensing Agreement.

Kind regards,
Janis Kercher
City of Alexandria VA

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your follow up question.

While the association board can make the determination as to use of common areas, they cannot just take space from you that you paid $12K for without compensating you.

Now that you filed your complaint for violation of the ADA and FHA, you should not be speaking to the board at all without an attorney, since they are going to be your adversary now and you do not want to say the wrong thing to them to hurt your good ADA and FHA claims. I would not sign anything or say anything to them now until you resolve your ADA/FHA claims through the agencies you have reported to as they will begin working to help resolve the matter and let them do so or get a local attorney to talk to the association on your behalf. There is generally considerable money awarded in this type of suit, plus attorney's fees so most attorneys will take this on a contingency.

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Law Educator, Esq.
Law Educator, Esq.
Real Estate Lawyer
91769 Satisfied Customers
Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.