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Property II: Class # 22 Monday 11/5/18 Power Point Presentation National Doughnut Day

This presentation discusses the legal requirements for reasonable accommodations and modifications for individuals with disabilities. It covers statutes, legal claims, and the concept of "reasonable" modifications, using relevant case examples.

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Property II: Class # 22 Monday 11/5/18 Power Point Presentation National Doughnut Day

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  1. Property II: Class #22Monday 11/5/18Power Point PresentationNational Doughnut Day

  2. Music to Accompany Groner: India.Arie, Acoustic Soul (2001) I’ll Post Wednesday’s Assignment Before I Leave School Today

  3. Chapter 4: DISABILITY ACCOMMODATIONSIntroduction to Statutes & Legal Claims:Reasonable Accommodations cont’d

  4. Chapter 4:Disability Accommodations Shapiro Hard Q (DQ4.06): McLaughlin & Friedhoff • Would the statute require the Cooperative to give her a parking space if it meant displacing the existing parking rights of another tenant.? • The court never needs to reach the hard question b/c unnecessary here b/c non-tenants using spaces & can be displaced • How should that question be resolved?

  5. Chapter 4: DISABILITY ACCOMMODATIONSIntroduction to Statutes & Legal Claims:Reasonable Modifications

  6. Chapter 4:Disability Accommodations Reasonable Modifications Generally 3604(f)(3) For purposes of this subsection, discrimination includes— • (A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person… Focus is modification of premises at expense of claimant. Unnecessary if claimant owns premises, so concerns rental units and common areas of rental buildings and HOAs

  7. Chapter 4:Disability Accommodations Reasonable Modifications Generally 3604(f)(3) For purposes of this subsection, discrimination includes— • (A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises … Again “necessary” & “reasonable.”

  8. Chapter 4:Disability Accommodations Reasonable Modifications Generally 3604(f)(3)(A): • Must Allow Modification of Premises at Claimants’s Expense Where Necessary & Reasonable … except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted[;] • Landlord can require tenant to restore premises if reasonable

  9. Chapter 4:Disability Accommodations Reasonable Modifications Generally 3604(f)(3)(A): • Must Allow Modification of Premises at Claimants’s Expense Where Necessary & Reasonable • Landlord can require tenant to restore premises if reasonable • Under HUD Reg 100.203 & Examples: • Not reasonable to require restoration where no interference w ldld or next tenant (e.g., wider doors or reinforcement in walls) • Ldld can require $ in escrow to cover restoration

  10. Chapter 4:Disability Accommodations Freer Generally A. Overview: relatively straightforward case: 1. Trailer park resident wants to install ramp at own expense 2. Owners refuse permission 3. Govt action against owners of trailer park

  11. Chapter 4:Disability Accommodations Freer Necessity B. Necessity for ramp is pretty straightforward 1. 5 steps (so resident needs to be carried or assisted) a. can’t participate in normal activities b. afraid to leave home; injured in past while being assisted 2. alternative proposed by D much steeper (so doesn’t meet necessity) 3. Ct: no Q that refusal to allow ramp effectively denies equal opportunity to use home

  12. Chapter 4:Disability Accommodations Freer Reasonableness & DQ4.07 • Burden of Proof on Reasonableness a. Courts split (cf. Groner) b. Freer puts bdn on D to rebut presumption of discrimination by demonstrating that proposed ramp is unreasonable 2. DQ4.07: Info on “Reasonable” from Statute & Reg a. No definitions or explanations b. Two easy examples (like accommodations reg); don’t help much

  13. Freer & ReasonablenessDQs 4.07-4.09: Ramos & Fleming 4.07 What standard does the court in Freer apply to decide meaning of “reasonable”?

  14. Freer & ReasonablenessDQs 4.07-4.09: Ramos & Fleming 4.07 What standard does the court in Freer apply to decide meaning of “reasonable”? • “No undue financial or administrative burden” • No specific reference to “substantial burden” though seems likely if burden big enough, court would decide for D • No reference to “fundamental alteration.” What might that mean in a reasonable modification case?

  15. Freer & ReasonablenessDQs 4.07-4.09: Ramos & Fleming What might “fundamental alteration” mean in a reasonable modification case? • Big change to building? • Interference with fancy or historic architecture? Should aesthetics count? • Difficult to know what it would mean for trailer park

  16. Freer & ReasonablenessDQs 4.07-4.09: Ramos & Fleming • D claims unreasonable here because ramp would: • impede trailer removal • cause parked cars to stick out into access road impeding traffic • NOTE: court seems to accept that these would be undue burdens if shown to be substantial problems

  17. Freer & ReasonablenessDQs 4.07-4.09: Ramos & Fleming • Court says “reasonable on record (prelim injunc) • No evidence of financial harm to D • Won’t impede trailer removal b/c ramp disassembles in 3 hours • Photograph “sheds substantial doubt” on parked cars impeding traffic on access road • DQ4.08 slides down slippery slope for each. At some point, too far to be reasonable; are these examples “too far”?

  18. Freer & ReasonablenessDQs 4.07-4.09: Ramos & Fleming • 4.08: Do changes make ramp unreasonable? (a) No evidence of financial harm to D Ramp increases ldld’s property tax by $40/year (b) Won’t impede trailer removal b/c ramp disassembles in 3 hours  ramp disassembles in 9 hours. (c) Photograph “sheds substantial doubt” on parked cars impeding traffic on access road  The ramp sticks out sufficiently that most cars have to slow down to get by.

  19. Chapter 4:Disability Accommodations Freer & DQs 4.07-4.09: Ramos & Fleming 4.09. Suppose a mobility-impaired tenant in a multi-unit apartment building (pursuant to §3604(f)(3)(A)) paid for and installed a ramp that led to the main lobby on the exterior of the building. When the tenant leaves, must the tenant “restore” the building by removing the ramp?

  20. Chapter 4:Disability Accommodations Freer & DQs 4.07-4.09: Ramos & Fleming 4.09. Suppose a mobility-impaired tenant in a multi-unit apartment building … installed a ramp that led to the main lobby on the exterior of the building. When the tenant leaves, must the tenant “restore” the building by removing the ramp? • Restoration language in statute/reg says “interior” • Examples are both interior • Not reasonable to require restoration where no interference w ldld or next tenant.What would be true with ramp?

  21. LOGISTICS • Written Assignments • Written Assignment #5 Due Sunday 11/18 @ 8pm • Two 3 Page Qs Like Assmt #3 (Colors) • Rev. Prob. 3C & Mixed Clapter Question M1B • Written Assignments #3 and #4 Returned by 11/14 • Written Assignment #5 Returned on 11/26 • Individual Meetings (~1 Hour) • Mon 11/26 – Thu 11/29 (You Choose Day/Time) • Can go over written assignments and/or other review problems, and/or ask Qs.

  22. Chapter 4: DISABILITY ACCOMMODATIONSIntroduction to Statutes & Legal Claims:Brief Introduction to FHAA Access Issues

  23. Chapter 4:Disability Accommodations Brief Intro to FHAA Access Issues • Buildings Covered: 3604(f)(3)(C) & (f)(7) • Buildings w 4+ Units • Whole building if elevators • Just ground floor if no elevators (note re $$$) • Built for 1st occupancy after 3/13/91 • Will be Tested in Lawyering Q Only • E.g., Claimant’s Unit Not Accessible as (F)(3)(C) would require • Check if Building/Unit Covered re Date and (f)(7) • If not,covered, need to do as accommodation or modification

  24. Chapter 4:Disability Accommodations Brief Intro to FHAA Access Issues • Accessibility Requirements 3604(f)(3)(C) (i) – (iii) • Public Use & Common Areas Must be Accessible • Doors into & within premises wide enough for wheelchairs • All premises must contain: • Accessible route into & through dwelling • Light switches, outlets, thermostats in accessible locations • reinforcements in bathroom walls to allow grab bars • Kitchens and bathrooms usable by person in wheelchair • Safe Harbor: Compliance w ANSI (at time of construction) • Newspapr article just to show took time to sink in

  25. Chapter 4: DISABILITY ACCOMMODATIONSAccommodations Claims Against Private Defendants

  26. Chapter 4:Disability Accommodations Accommodations Claims Against Private Defendants • Re Landlords • Freer • DQ4.09 • Cal Mobile Home • Groner • DQ4.15 • Rev Prob 4B • Re HOAs • Shapiro • Rev Prob 4A

  27. Accommodations Claims Against Private DefendantsCal. Mobile Home Park Cases Generally • E C-S lives in mobile home park; has daughter w disability • Daughter’s condition requires supervision by visiting Health Care Aide • Claim is that fees for guest parking should be waived for Aide • 1994 Case (ruling on Motion to Dismiss) holds fees generally applicable to all residents can be subject of reas accomm claim. • 1997 Case affirms trial court holding after trial that fee waiver wasn’t necessary for E C-S to use and enjoy the dwelling

  28. Cal. Mobile Home Park I: Reasonableness (fn4) Footnote 4: For example, the landlord of an apartment complex may charge all residents a monthly fee for parking their car. Although a handicapped resident may require a car far more than other residents, a waiver of the car fee would put him in a privileged position in relation to other residents. Here, while we remand for further inquiry into the merits of the present fee, it seems likely that few other residents would have a “guest” requiring an extra parking space every day. It is thus much less probable that waiver of guest fees would give Cohen-Strong an advantage over other residents.

  29. Cal. Mobile Home Park I & II: DQ4.10-4.11Friedhoff & McLaughlin • 4.10. Is the court’s analysis of the reasonableness issue in footnote 4 of California Mobile Home Park I consistent with the examples in 24 CFR 100.204(b)? (no pets; reserved parking) • Is it consistent with Shapiro? • How would this analysis apply to the undecided “hard question” in Shapiro described in Discussion Question 4.06?

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