Disabled Resident Parking: A Common But Frequently Misunderstood Fair Housing Issue

We taught many advanced Fair Housing classes this past month. Surprisingly to us, and probably distressful to regional managers and executives, many participants lacked critical knowledge regarding a very significant Fair Housing issue. Because it is a very common issue and significant legal liability can result for making wrong decisions, we felt compelled to address the issue in this month’s newsletter.

Disabled residents who need parking accommodations are entitled to them. Period. However, based on discussions with countless managers, regional and district managers, executives, and Fair Housing class participants, the multi-family industry continues to misunderstand the issue in general. In particular, important distinctions between handicapped parking spots, and close up reserved spots are not well understood. These misunderstandings may result in bad decisions and corresponding significant legal exposure when disabled parking requests are improperly handled, or worse, improperly denied.

The flood of client Fair Housing issues pouring into the firm never stops.  Unfortunately, too many have no black and white answers. Disabled parking is not one of these issues. If a disabled resident requests a close up reserved parking space and it is reasonable to do so under the circumstances, you must provide the space. The law is clear. Although there are countless court cases on this issue, we need look no further than the Code of Federal Regulations.

The example set forth in the code of federal regulations (C.F.R.) clearly illustrates the legal obligation to provide the parking space. 24 C.F.R. 100.204(2) states “Progress Gardens is a 300 unit apartment complex with 450 parking spaces which are available to tenants and guests of Progress Gardens on a first come first served basis. John applies for housing in Progress Gardens. John is mobility impaired and is unable to walk more than a short distance and therefore requests that a parking space near his unit be reserved for him so he will not have to walk very far to get to his apartment. It is a violation of § 100.204 for the owner or manager of Progress Gardens to refuse to make this accommodation. Without a reserved space, John might be unable to live in Progress Gardens at all or, when he has to park in a space far from his unit, might have great difficulty getting from his car to his apartment unit. The accommodation therefore is necessary to afford John an equal opportunity to use and enjoy a dwelling. The accommodation is reasonable because it is feasible and practical under the circumstances.”

Most managers understand their obligations to provide parking spaces for disabled residents. What has become clear to us is that many managers do not understand the differences between handicapped parking and close up reserved parking obligations, and other related issues.

A handicapped parking spot is a parking space designated by the universal handicapped sign. Anyone with proper handicap parking credentials (plates, placard, or mirror hanger) can park in a handicapped designated parking spot.  A handicapped reserved parking spot differs slightly from a handicapped spot.  The spot is still marked or designated by the universal handicapped sign. However, the handicapped parking sign marking the space contains the words “reserved” or similar words to indicate that the space is reserved for a particular handicapped individual. We don’t recommend use of the “reserved handicapped” sign to reserve parking places for disabled residents. The “handicapped reserved” sign does not always deter other handicapped credentialed vehicles from either unintentionally or intentionally parking in the space. Thus, such a sign may not be effective at accomplishing its main purpose; reserving the space for a particular individual. If your goal is to reserve a parking spot for a particular individual, just designate the spot with a “reserved” designation.

A reserved parking spot is reserved exclusively for a particular resident. To avoid significant potential legal problems, you should give a disabled resident a close up parking spot reserved exclusively for that resident when the resident has sought and been granted a reasonable parking accommodation. To avoid problems with other residents, the space should not set forth the resident’s unit number. The resident who is entitled to park in the space knows that it is their space. The sign should state that the space is reserved, and violation will result in immediate towing without notice.

If a disabled resident asks for a handicapped spot, and you give it to them, how can this possibly result in future legal problems? After all, the resident asked for a handicapped spot, and you promptly gave them what they asked for. The potential problems are many. If a disabled resident needs a close up reserved parking spot and you give them a handicapped designated spot, have you really given them a close up reserved parking spot? No, you have not. As noted above, because anyone with proper handicapped credentials can park in a handicapped spot, a handicapped designated spot may not (probably will not) adequately meet the disabled resident’s parking needs.  Other individuals will park in the space frustrating the disabled resident. The disabled resident may file a discrimination charge against you with the Colorado Civil Rights Division for housing discrimination.

If the disabled resident’s request for a parking accommodation has been adequately documented in writing, you may successfully defend against the discrimination charge. However, you will still expend considerable time, effort, and money in responding to the charge. If the disabled resident’s request for a parking accommodation has not been properly documented in writing, you now have a major problem.

How can you have a major problem over a request for a reasonable parking accommodation when you gave the resident exactly what they asked for? After all, they asked for a handicapped space, and you gave it to them. The problem results because you provided a handicapped space and the resident’s request was not documented in writing. The disabled resident now changes his story. He tells the Colorado Civil Rights Division that he didn’t ask for a handicapped space, he asked for a close up space reserved exclusively for him. Sound farfetched? It’s not. One of the most costly and contentious Fair Housing cases ever defended by the firm in federal court was over this very issue. Keep in mind that the resident’s changed story (“I asked for a close up reserved space”) inherently rings true. If somebody needs a reasonable parking accommodation, why would they ask for a space that is not reserved for them when any other handicapped individual could park in the space?

After discussing this issue, recent Fair Housing class participants raised many additional issues. What are their disclosure obligations? If the resident asks for a handicapped space, do you have to tell the resident that they are entitled to a close up exclusively reserved space? No, it’s not your responsibility to tell a resident what accommodation they should seek, or that legally they may be entitled to additional rights. However, you should always document all requests for reasonable accommodations in writing to avoid problems later. Documenting is critical whenever a resident asks for less than what the resident may be legally entitled to. You don’t have to tell them, but again, it would be better to avoid all future problems by just giving them a close up reserved space in the first place. This applies whether the resident asks for a handicapped space, or a handicapped reserved space.

If a resident asks for a handicapped space, can we condition providing the handicapped space on the resident providing handicapped parking credentials? No. If the resident is disabled and needs the parking accommodation, this is all that the law requires. You may not place additional conditions on granting the accommodation. The properly credentialed issue can be avoided by providing a reserved space in the first place.

We can’t provide the resident a reserved space because we have a non-reserved parking policy. A reasonable accommodation is an exception to a policy. Failure to make an exception to a policy for a disabled resident, if warranted, is a clear violation of Fair Housing laws. You have committed housing discrimination if you don’t make the exception in this case and instead provide the resident with a handicapped space when the resident really wanted a close up reserved space.

We already have enough handicapped parking. If the resident thought your handicapped parking was sufficient, he probably would not be asking for a space. Even if you do have sufficient handicapped parking, the resident’s request is a clear indication that he is having parking problems. The resident’s request is also a clear indication that you would be much better off just assigning him a close up reserved spot.

If we give this resident a handicapped space or reserved space, we will have to give every resident a handicapped space or reserved space. An alternative theme is that providing a reserved space will lead to a flood of requests for reserved spaces. Just because you give one resident a reserved space doesn’t mean that you have to give all residents a reserved space. Granting a request for a reasonable parking accommodation does not set a precedent. Under the law, requests are examined, and then granted or denied on a case by case basis. If the resident is not disabled, does not need the accommodation, or both, you do not have to grant it. Some clients have gone back to reserved parking for everyone, and given disabled residents the best reserved spots or requested reserved spots, to avoid these issues entirely.

We don’t have any parking spaces to give. If this is truly the case, you can’t give what you don’t have. If you do not have any close up reserved spaces or spaces to designate as handicapped, you don’t have to create one to grant a parking request. Remember, the law only requires you to provide an accommodation if it is reasonable. A request is reasonable if it is feasible and practical. This rationale also applies to a disabled resident’s request for a space already designated for another disabled resident.

This article addresses the differences between handicapped parking spots, reserved spots, and related issues. The main purpose is not to address how to handle requests for reasonable parking accommodations, or whether or not the disabled resident is entitled to the parking accommodation in the first place. The discussion assumes that the disabled resident is entitled to a reasonable parking accommodation.

If you need a thorough explanation or education on how to handle requests for reasonable accommodations in general, and parking requests in particular, come to the firm’s Fair Housing classes. Basic Fair Housing gives an overview of these issues, and advanced Fair Housing provides an in depth analysis of how to address requests for reasonable accommodations, including providing detailed forms and form letters. The class schedule is published on our website. Like all other firm classes, the firm provides these classes to firm clients as value added services to clients at no cost. If you have an issue come up before you can attend a class or a complicated situation, please do not hesitate to contact us for help.

View Resource »