Q: I have a question in regards to condominium board member term of office and elections. Due to the new law that started in 2018, do the board members automatically stay on the board if they choose to for up to eight years, or do they have to send their intentions to run again after 2 years? If they have been on the board for 3 years prior to this law in 2018. Does it automatically give them up to eight years on the board from 2018 or from the previous 3 years? (S.C., via e-mail)
A: The new statute (enacted in 2018) imposes 8 year “term limits,” but does not change the provisions of the law regarding individual terms of service on the board.
Although the law has been amended numerous times over the year and now contains internal conflicts on permissible terms of office, most associations now have either 1 year board terms or 2 year staggered terms. When that term is up, if an incumbent director wishes to seek reelection to office, they are required to submit their name into candidacy at least 40 days before the election, just like anyone else.
Q: My handicapped father requires full time care. He lives in his condominium for six months a year. The condominium association is giving us a very difficult time with his caregiver coming in a few days ahead of my father to set up. The bylaws provide that no one should be on the premises without the owner also being in residence. The association has sent us a letter saying that my father is in violation. Are there any ADA guidelines dealing with this? (S.G., via e-mail)
A: The Americans with Disabilities Act, commonly referred to as the ADA, does not generally apply to residential condominiums, as they are not typically considered “a place of public accommodation.” However, the ADA can apply to certain types of condominiums, depending on rental policies and services provided.
The Fair Housing Amendments Act of 1988 (and related state laws) generally prohibit discrimination against “handicapped” persons, now more commonly referred to as persons with disabilities. These laws require that housing providers, which includes residential condominium associations, make “reasonable accommodations” regarding rules, policies, or practices as may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling.
Of course, what is “reasonable” is sometimes in the eye of the beholder and is often the focus of litigation in this area of the law. The law has not set any standards for “caregivers,” and this can be a point of contention in communities, particularly in “55 and over” housing where there may be strict occupancy restrictions, or situations where a restrictive single-family definition may be in place.
Obviously, the association does have a legitimate objective in enforcing the requirements of its bylaws and creating exceptions can create concerns in the mind of board members about “precedent.” Also, we do see some “caretaker” requests that are thinly disguised efforts to bring in a roommate or other occupant who may not be permitted under the documents.
If your father is disabled (and the association may require reasonable proof of that in some circumstances, though not if the disability is known or obvious) and there is a demonstrable need for a caretaker, the association must at least engage in an “interactive process” to determine if an accommodation can be reached that is agreeable to all. I would suggest that you ask the association to consider getting legal advice as to what their rights and options in this type of situation are, and you should consider doing so as well. I do encourage attempting to see if these situations can be resolved by mutual agreement before legal threats are considered.