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Ask Attyadvisor Your Own Question
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7074
Experience:  29 years of experience in General Practice, Real Estate Law and Estate Law.
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If I have a physicians order that a persons medical supplies

Customer Question

If I have a physicians order that a persons medical supplies need to be maintained at a specific temperature can the HOA prevent me from having a portable AC unit? Other options are not sufficient to meet the cooling needs
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 2 years ago.
In California the HOA is governed by the Davis Stirling Act. Can you tell me if a porratble air conditioner is prohibited in your governing documents?
Expert:  Attyadvisor replied 2 years ago.
Davis Stirling Acthttp://www.davis-stirling.com/MainIndex/Davis-StirlingAct/tabid/427/Default.aspx#axzz3g6j2ocN9
Customer: replied 2 years ago.
According to the woman who works in the office it is but I think it specifically states no window AC units and this is an exhaust hose that is filtered through the window
Customer: replied 2 years ago.
so according to the guidelines the only category that my AC fits into is the nuisance section and it says no unsightly articles can be visible, this is in a section regarding laundry... there is no section that specifically states anything about any kind of window AC
Expert:  Attyadvisor replied 2 years ago.
If it is not specially excluded I would want to see the language in the bylaws. If you have the language and can attach the bylaws that would be helpful. Further if there is a medical need and there is a specific prohibition in your governing documents the board has the ability to make an exception for your property. This is a board matter and the board would be tasked with making the decision, if it is prohibited. Reading the language would be helpful. hOA's and the governing documents have a great deal of power and responsibility to follow the governing documents and enforce the rules The board has a fiduciary dutiy to the owners.
Expert:  Attyadvisor replied 2 years ago.
Sorry for the typo. HOA''s have a duty to abide by the governing documents and enforce the bylaws.
Expert:  Attyadvisor replied 2 years ago.
The HOA has the ability to waive a prohibition that is a medical necessity for an owner. The law requires that certain accommodations MUST be permitted for those owners suffering from a medical disability.
“Reasonable accommodation is a Federal Fair Housing Act ("FHA") issue, not ADA.
Verifying the Disability. When a disabled owner makes a request for reasonable accommodation and the person's disability is obvious, the association cannot request additional information about the existence and validity of the disability. When the disability is not obvious, an association can request information verifying:
1. The person is disabled,
2. The need for the requested accommodation, and
3. The relationship between the disability and the requested accommodation.
Reasonable Accommodation vs. Modification. A “modification” under the FHA is distinct from an accommodation. The Fair Housing Act does not provide a definition for “modification,” but regulations promulgated by HUD define a modification as any change to the public or common use areas of a building or any change to a dwelling unit. Claims for reconstruction or renovation to a dwelling are actionable under the reasonable modifications section of the FHA, and not the reasonable accommodation section.
Discrimination. Discrimination under the Act includes “a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.” 42 U.S.C. §3604(f)(3)(A). The statute also makes unlawful any “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” §3605(f)(3)(B).
RECOMMENDATION: Failure by a board to make reasonable accommodation when an appropriate request has been made can lead to costly litigation for the association. Boards should consult with legal counsel when a resident makes a request for reasonable accommodation. Associations needing assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.”
Read more: Accommodation http://www.davis-stirling.com/tabid/3005/Default.aspx#ixzz3gH45bJBp
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If this is a medical necessity the board would needs to grant your request or face suit for discrimination.
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