Feature Articles: Who Pays for Parking Accommodations in Community Associations

Judgment Balance, Post-Judgment Balance Isn’t a File Just “In Collections?”

May 2016

Pursuant to state and federal law, physically and mentally disabled

individuals must be afforded reasonable accommodations in an

association’s rules, regulations, and other documents so they can

live in their homes and communities with full access and enjoyment.

Sometimes physical changes to the property are necessary to

allow for its full use and enjoyment. When modifications to the

physical property are requested, the question often arises who is

responsible for paying the costs? The answer, as is the case with

many things in life, is not as straightforward as one may think or

want. That is the case because the Fair Housing Act distinguishes

“accommodations” and “modifications.”

Congress passed the Fair Housing Act in 1968 as Article VIII of the

Civil Rights Act of 1968 and expanded its scope when it adopted

the Fair Housing Act Amendments Act of 1988. As amended,

the Fair Housing Act (“FHA”) protects individuals from housing

discrimination on the basis of race, color, religion, sex, familial

status, handicap, and national origin, known as “protected

classes.” It is these protected classes that the association should

consider when taking actions that may come under the auspices

of the FHA. In addition to the federal FHA, Georgia adopted its

own version of the Fair Housing Act in 1990, which is essentially

identical to the federal FHA but authorized the state to bring

actions without the involvement of the federal government. The

Who Pays for Parking Accommodations in Community Associations?

THE FAIR HOUSING ACT

By Jimmy Kim

federal FHA is administered by the

Department of Housing and

Urban Development (“HUD”) and

Georgia’s Act is administered by

the Georgia Equal Opportunity

Commission (“GEOC”).

Likely the most common request

for accommodations to an

association’s regulations is for

designated handicapped parking.

Accommodations refer to an

association making adjustments

to rules, policies, procedures, and

services when such accommodations

may be necessary to afford a

person equal opportunity to use and

enjoy a dwelling.

For example, on the issue of

parking spaces, if parking spaces

are unassigned common areas,

identifying a space or spaces for use

by disabled individuals can be seen

as a “rule” that the marked spaces

are for use of disabled individuals. Accordingly, since this

is an “adjustment” to an existing rule regarding parking

spaces, it is clear to see this as an accommodation.

It may also include constructing a ramp access to the

association’s common area or creating curb cuts where

such cuts are necessary to provide equal access to the

common area. Naturally, these requests cost money, and

the looming issue is who should pay for them?

In addition to making accommodations in rules and

regulations, another provision of the FHA requires a

community association to allow a disabled person, at

his or her expense, to make reasonable modifications

to the common areas where the modification(s) may be

necessary to afford such person

the full enjoyment of the premises

in the community. This means

that a community association

cannot deny a handicapped

person’s request for modifications

to the common areas, but is not

obligated to pay for them under

the FHA.

At this point, it would appear an

accommodation applies to an

association’s documents and a

modification applies to a physical

change to the common property;

so an association would not be

obligated to pay for a curb cut or

the cost of a sign and blue paint to

designate a handicapped parking

spot. But, if that was the case, this

article would end here.

HUD and the Department of

Justice have taken the position

that for curb cuts and the

designation of handicapped parking spots, the work is an

“accommodation” and not a “modification.” It is not a

ruling of a court, it is just their decision which they base on

a catchall provision of the FHA. That provision authorizes

HUD to require an association to pay for modifications to

common areas in instances where it believes that requiring

the handicapped person to pay for the modification will

have a “chilling effect” on requests.

Based on that authority, an association was found to have

committed a discriminatory act when it assessed $90.00

for the cost of a handicapped parking sign, the blue paint

and the labor. Another association, when threatened with

a HUD complaint, agreed to pay for a curb cut, choosing

not to incur the cost to defend the claim as the test case

Ramp access to the association’s

common area may be requested to provide equal access. These requests cost money,

and the looming issue is who should pay for

them?

law firm in the United States. While having had all but 4 of

the 70 cases dismissed, regardless of the outcome, every

association incurred attorney’s fees and costs to defend

the HUD complaint. Boards should insist that it will not

purchase a Directors and Officers insurance policy (D&O)

unless it includes the cost of defense of a Fair Housing

Complaint. While we have made this recommendation

countless times, many boards do not confirm that coverage

and learn of the lack of coverage after a complaint is filed.

This causes needless expense for an association.

for a court to decide if HUD can classify a “modification”

as an “accommodation.” While forced to pay for a curb

cut, HUD agreed with the association that the owner was

responsible for all of the costs to install a ramp from the

curb cut, which due to the steep slope of the property, was

not feasible.

So how does one distinguish a request for “modification”

from a request for an “accommodation?”

There is no “HUD-proof” answer to all the issues related

to the question of who should pay for costs related to

addressing various requests from handicapped residents.

That means a community association should consider each

request seriously and obtain the advice of your attorney.

WNCW has defended over 70 FHA claims made against

associations – more than any other Community Association

HUD and the Department of

Justice have taken the position that for curb cuts and

the designation of handicapped

parking spots, the work is an

“accommodation” and not a

“modification.”

Judgment Balance, Post-Judgment Balance ...

Isn’t a FileJust “In Collections?”

By Vicky Sand

When discussing collection files, you are likely to hear your

lawyers use a variety of terms whose meanings may not be

intuitive, such as “judgment balance” and “post-judgment

balance.” Below we provide a quick cheat-sheet and

best practice suggestions for keeping track of an owner’s

account balance once a judgment has been entered.

Judgment Balance: This refers to an amount owed that

has been reduced to a judgment against the owner. This

amount only encompasses amounts owed through the date

of judgment, the date the motion for summary judgment

was filed, or, in the case of a default judgment, it may only

cover amounts owed as of the date the lawsuit was filed.

The judgment balance will never include amounts owed or

incurred after the date of judgment.

Practical Tip: For any owners who contact the

association or manager directly seeking to settle

either a judgment or their accounts in full, refer them

to our office so that we can provide their outstanding

balances. Also, if statements are not available online,

please send us an updated account statement at that

time so that we can credit any payments made.

In the case of a default judgment, this means the owner-

defendant was served with the lawsuit but failed to file a

formal response. The reason a judgment balance may

only include the amounts owed as of the date the lawsuit

was filed is that some courts interpret Georgia law to mean

that the defendant only had notice of amounts owed in the

complaint and, therefore, only those amounts are properly

awarded in a judgment. If this occurs, we will make the

necessary adjustments in our ledger, and any amounts not

included in the judgment are included in the post-judgment

balance. That being said, in most instances, a judge will

award the full amounts sought through the date of the

default judgment.

Post-Judgment Balance: This refers to any amounts

that were not incurred, not owed, or not included in the

judgment balance. Unless we receive a separate and new

authorization to open a post-judgment file, we will not

actively update the post-judgment balance owed within

our files. The post-judgment balance covers all amounts

owed since the time judgment was obtained, and we

cannot include post-judgment attorney’s fees incurred

in collecting the judgment balance in any garnishment

actions because they are not included in the existing

judgment. In order to reduce the post-judgment amounts

owed to a judgment, the process needs to be initiated

again for the post-judgment delinquent balance, including

any post-judgment attorney’s fees. Many times, an owner

will have both a judgment and a post-judgment balance

and will be looking to settle one or the other or both. It

is very important that we provide the owner an accurate

amount for the outstanding judgment balance, as well as

the outstanding post-judgment balance.

Best Practice Tip: Consult with our office if an owner

has been placed in collections with our firm. NEVER

provide a payoff amount (whether part of a closing or

not) without consulting with our office, as we want to

make sure all attorney’s fees, court costs, and costs

of collection are included. We want to ensure the

association recovers all amounts owed in connection

with the debt in order to make the association whole.

Best Practice Tip: For associations that charge annual

dues, if the judgment was obtained over two years ago

and the owner’s account remains delinquent, the Board

should authorize our office to open a post-judgment

file to pursue amounts incurred after the previous

judgment was obtained. We will never “assume” the

association wants to open a post-judgment file against

an owner, even when we know there are additional

amounts owed. We recommend the Board review each

file that remains delinquent two years after judgment

is obtained to ensure the association does not forfeit

its right to collect any additional amounts owed due

to the statute of limitations, which is four years. For

associations that charge monthly dues, we recommend

reviewing the need to open a post-judgment file at

least within one year after judgment was obtained, if

not sooner, depending on the amount of the monthly

assessments.

For more information, contact Vicky Sand via email at vickysand@wncwlaw.com or by telephone at 404-926-4688.