Aging in place in Community Associations

According to the 2010 U.S. Census, 48% of owner-occupied homes and 26.2% of rental homes nationwide contained one or more persons age 55 or older. In Minnesota, 24.8% of the State’s population is 55 years of age or older and 22.8% of all households contains at least one person who is at least 65 years old. As our general population ages, so does the population of community association members and residents. With an aging population can come health problems. Some residents, regardless of age, may have difficulty living on their own due to health problems, may cause disruptions to their neighbors and the association and may even become a danger to themselves, their neighbors or the property. Often, the other members and residents expect the association to intervene and resolve these difficult situations. However, associations are limited in their authority to intervene, particularly if the resident’s behavior does not violate the association’s covenants, rules or regulations.  Additionally, boards and property managers must be careful not to discriminate against such residents or otherwise violate any fair housing laws.

If the member or resident is not violating any of the association’s rules or covenants, then the association has little or no power to intervene. If the member has provided the association with an emergency contact person or has given permission to speak with a family member, the association may be able to contact that person with its concerns. It may also be appropriate for the board or a concerned neighbor to contact the appropriate county agency if dealing with a disabled person or vulnerable adult to see if there are any services that the agency may be able to provide. It should be noted, however, that unless the resident is already receiving services from a local agency, most government and non-profit agencies will not be able to intervene without a court order unless the person is an immediate danger to him/herself or others.

Association boards do, however, have the power and obligation to enforce the covenants and rules of the community. The Minnesota Common Interest Ownership Act (“MCIOA”) and most associations’ governing documents contain provisions granting the association various remedies in the event that a member fails to pay assessments, damages property, unreasonably disturbs other members and residents, or violates other association rules. Associations governed under MCIOA have the authority to adopt rules and policies regulating the common areas and the conduct of members and guests that disturbs other members and/or damages property.[1]  If your association is not governed by MCIOA, you will need to consult your governing documents to determine what authority the association has to regulate anything other than the common areas.  After notice and an opportunity for a hearing, associations may fine members for violations of the covenants and rules.  Additionally, if damage to the common elements or another unit is caused by the act or omission of a member or the member’s tenants or guests, MCIOA permits the association to assess the cost of repairing that damage exclusively against that owner’s unit to the extent not covered by insurance.[2] These fines and assessments are collectable just as any other assessments against the member’s property and constitute a lien against the property if not paid.

Some associations, particularly those that are designated as 55 and older communities, have adopted some form of independent living policy that essentially requires occupants to be able to maintain themselves and their unit in a manner that is not dangerous to the health and safety of other residents or to the unit or building.  These policies can be effective tools for dealing with certain health-related issues that can have a negative impact on the community but must be carefully crafted and applied to avoid violations of fair housing laws.

Both the Federal Fair Housing Act (“FHA”) and the Minnesota Human Rights Act (“MHRA”) prohibit discrimination in housing on the basis of race, color, religion, sex, national origin, familial status and disability.  The FHA defines “disability” to include the following:

1)  Individuals with a physical or mental impairment that substantially limits one or more major life activities;

2)  Individuals who are regarded as having such an impairment; and

3)  Individuals with a record of such an impairment.[3]

Associations and other housing providers are prohibited from implementing discriminatory policies or from selectively enforcing facially neutral policies based on the existence (or perceived existence) of a member’s disability.  Additionally, associations may not inquire into the existence of or nature and severity of a member or occupant’s disability.  Therefore, associations should only concern themselves with whether an owner or occupant has violated the association’s covenants or rules, e.g. has the owner failed to pay assessments or has the owner or occupant violated rules and regulations, including those prohibiting nuisances or activity that unreasonably disturbs other members, and/or has the owner or occupant damaged the common elements or another unit?

Under the FHA and MHRA, it is also considered discriminatory for an association to refuse to make a reasonable accommodation in its rules, policies, practices or services when such an accommodation may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.[4]  In order to be entitled to a reasonable accommodation, the association must receive a request for said accommodation by or on behalf of a person with a disability who is an owner or occupant of a unit, there must be an identifiable relationship between the requested accommodation and the person’s disability, the requested accommodation must be necessary for the disabled person to use and enjoy the property (as opposed to being merely convenient), and the accommodation must not impose an undue financial or administrative burden on the association.  When confronted with a request for an accommodation, the association may make limited inquiry to determine whether the person is disabled -if the disability is not obvious – and whether the requested accommodation is sufficiently related to the disability and necessary for the person to use or enjoy the property, but may not make unreasonable or unnecessary inquiries that serve only to harass the person making the request.  It is a good idea for associations to adopt policies and procedures for processing reasonable accommodation requests to ensure that all such requests are responded to appropriately and in a timely manner.   Associations should also be careful in drafting or implementing any “independent living” policy[5] to ensure that disabled persons who are able to comply with the policy and safely reside in the community with the assistance of nursing aides, in-home help and/or other reasonable accommodations are not being discriminated against simply because they require such assistance.

Navigating through these aging in place and disability issues can be tricky and can get an association board or property manager in trouble if not done properly.  Associations faced with such concerns should consult with their attorneys regarding their obligations and responsibilities and to ensure compliance with their governing documents and all applicable fair housing laws.

[1] Minn.Stat. 515B.3-102.

[2] Minn.Stat. §515B.3-115(g).  If your association is not governed by MCIOA, check your governing documents to determine whether such authority exists.

[3] 42 USC §3602(h).

[4] 42 USC §3604(f)(3)(B).

[5] There has been a lot of discussion in certain circles that even the use of the term “independent living” may be deemed discriminatory to the extent that it connotes the idea that a person must be able to live in the property completely independently and without any kind of assistance.  While the form and substance of the actual policy is clearly more important than its label, associations may wish to keep this in mind when developing any such policy.

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