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Harassment of Disabled Persons is Illegal

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Q: An owner reported to the board that another owner has been “harassing” him due to his physical disability and has asked the board to take action. Is this an association responsibility or a private matter between the two owners? (N.K, via e-mail)

A: There is no Florida case law on this issue, and how far an association has to go to prevent one owner from “harassing” another is an open question.

Harassment of a person with a disability whether verbally, in writing, or by other conduct is illegal under 24 CFR Section 100.600(a)(2) of the Federal Code of Regulations, adopted incident to the Fair Housing Act. This regulation prohibits creating a hostile environment related to race, color, religion, sex, familial status, national origin, or disability. The regulations define “hostile environment harassment” to include “unwelcome conduct that is sufficiently severe or pervasive as to interfere with the use or enjoyment of a dwelling.”

Most governing documents contain a provision prohibiting unlawful conduct. Accordingly, the association, as a housing provider, may have a potential duty to enforce its documents and to at least investigate such allegations.

In a 2003 federal appellate court decision, a property management company was found liable where a tenant was subjected to repeated, disability-based harassment by fellow tenants that was reported to the property management company “to no avail” and the harassment interfered with the tenant’s right to enjoy his home.

In a widely reported case arising in the Washington, D.C. area in the mid 1990’s, a federal trial court found an association liable where it knew of and “took little, if any, action” to address racial and sexual harassment by a condominium owner.

The bottom line is that any “discrimination” claim, including “harassment,” should be taken very seriously and immediately discussed with association legal counsel.

Q: I have a disabled parking permit. What rules govern street parking in a homeowners’ association? Our community does not have any posted signs prohibiting overnight street parking, but our security company gives warnings saying that any on-street parking is prohibited. (H.B., via e-mail)

A: Your community’s governing documents may have provisions that regulate on-street parking, regardless of whether signs are posted. As a lot owner, you are on notice of your governing documents. There may also be county or municipal regulations that regulate on-street parking.

Assuming the association’s on-street parking prohibition was duly adopted and is legally effective, applicable “fair housing” laws require associations to make “reasonable” accommodations to allow disabled persons the full and equal enjoyment of their lot and the common areas. This could require the relocation of a parking space closer to a point of entry or the making of other adjustments to help the disabled resident, depending on the circumstances. However, in most homeowners’ associations, the closest point of entry to one’s home is still the lot owner’s driveway and not the street. Additionally, I am aware of at least one case where a homeowners’ association was found liable for negligence when an accident occurred due to someone having to swerve around parked cars on the street. This would all go to whether a request to be exempt from street parking restrictions would be “reasonable.”

Section 320.0848 of the Florida Statutes authorizes the issuance of disabled parking permits for both long-term and short-term mobility impairments. Any person applying for a new permit or renewing their permit must complete an application, signed by a certifying medical authority. However, a disabled parking permit generally provides permission to park in parking spaces marked for that purpose and does not create a right to disobey state or local traffic laws, nor the disregard the governing documents of a homeowners’ association.

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