With the COVID-19 pandemic putting a new emphasis on driving and having a personal vehicle, combined with the rise in the cost of
parking in Boston and throughout the Commonwealth, the importance of parking rights is at an all-time high in condominium associations. As a result, many condominium boards are especially interested in their obligations with regard to handicapped accessible parking areas. We have received many questions on handicapped parking recently, and we want to share our findings and point out issues that boards should be prepared to face with regard to handicapped accessible parking spaces.
Generally, condominiums are not subject to the Americans with Disabilities Act (“ADA”), which requires reasonable modifications to facilities, policies and procedures for the accommodation of disabled individuals in order to comply with federal law, as most condominiums do not have space that may be used by and open to the public. If a condominium has space available to be used by the public, the ADA, among its other requirements, mandates that handicapped parking spaces be provided for public use. In the event that a condominium has public use space contained within it, boards should consult with counsel as they approach addressing accommodation requests.
Regardless of whether the ADA is applicable, the architectural requirements for parking spaces and parking lots when condominiums are built are circulated by the Massachusetts Architectural Access Board (“AAB”) and described in the Code of Massachusetts Regulations, Title 521 (“521 CMR”) Section 10, “Public Use and Common Use Spaces in Multiple Dwellings.” 521 CMR, Subsection 10.3 describes the requirements for handicapped parking spaces in condominiums, referred to as “accessible spaces” and described by the AAB as “multiple dwellings,” in pertinent part as follows:
The number of accessible spaces shall not be limited in number by 521 CMR 23.2.1, [entitled] Number but shall be provided in sufficient numbers to meet the needs of the dwelling unit occupants. If parking spaces are assigned to individual units, those spaces designated for accessible units shall have signage reserving said space. An international symbol of accessibility need not be used.
As described therein, there is no specific AAB requirement for the number of parking spaces that must be designated for the use of disabled condominium residents. Instead, 521 CMR, Subsection 10.3 requires that accessible spaces must be provided in “sufficient numbers” to meet the needs of the residents. “Sufficient numbers” is obviously a vague phrase, and a standard that may change over the lifetime of a condominium, which may make this a challenging measure for boards to comply with.
For example, a new owner with a disability may purchase a unit and may require a space that is wider to accommodate a wheelchair, or a space that is located closer to the main entrance of the building to reduce the distance he or she must travel to enter the building. Suddenly, what constitutes a “sufficient number” of accessible spaces that are necessary to meet the needs of the condominium residents has changed.
As with any reasonable accommodation request, an accessible parking space request should be evaluated to confirm that it meets the requirements of the Federal Fair Housing Act for reasonable accommodation requests. Assuming that it does, the response of the association should be to agree to reasonably accommodate the needs of a resident requiring a handicapped accessible parking space.
The process of making an accommodation by providing an accessible space for a resident will vary depending on the nature of the parking rights that exist in the condominium and the way the rights are described and provided to the owners in the condominium documents. It is important to have a solid understanding of the parking rights in dealing with any reasonable accommodation request related to parking and consultation with counsel is prudent.
By way of example, some condominiums are built and designed with guest or visitor spaces that meet handicapped accessibility requirements. Those spaces can then be provided as a reasonable accommodation to an owner or resident who requires one. Some associations maintain the ability, through language in their condominium documents, to relocate resident parking spaces at the board’s discretion. Those boards can therefore make an accommodation by requiring a resident with an accessible or more accessible space to exchange their space with a resident who needs one. These situations show straightforward methods to make a reasonable accommodation and meet the sufficient number requirement.
However, there are some associations, when faced with an otherwise reasonable accommodation request, that do not have a way to easily provide an accessible parking space. Depending on the situation, if the accommodation meets the requirements of the Fair Housing Act, an association should make every attempt possible to make the accommodation. This could include requesting a resident who has a more accessible space to exchange their space with the resident needing an accommodation.
In the event that an association cannot make an accommodation for a parking space and that reasonable accommodation has been reasonably requested, it can face stiff penalties from the AAB or the Massachusetts Commission Against Discrimination.
Parking, and issues related thereto, will always be important to condominium associations. In order to properly navigate issues related to accessible parking spaces, associations should always rely upon the advice of experienced condominium counsel.
An associate in the Boston and Quincy based law firm, Moriarty Troyer & Malloy LLC, Ryan possesses significant condominium and real estate transactional experience. His practice has included a focus on the general representation of condominium associations, including condominium document interpretation, drafting, enforcement, and collections. A member of REBA’s condominium law and practice section, Ryan can be contacted at rseverance@lawmtm.com.
