A convenient parking spot is a prized amenity at many rental properties. You and your staff may routinely field requests like, How can I get a spot closer to the building entrance or the entrance to my apartment? 

Don’t assume the person asking is just looking for a special favor. If an applicant or tenant has a mobility-related disability, they may have a physical need for a more convenient parking space—and be entitled to one under fair housing law. 

That’s because landlords have a duty to provide reasonable accommodations to disabled applicants and tenants, and in many cases an accessible parking space will fit the bill. But what does accommodating the parking needs of disabled applicants and tenants involve? Do you have to add another fully accessible space to your lot? Do you have to create a standard parking space in a particular location? Do you have to mark an existing space for one tenant’s exclusive use?

Just how far you actually have to go will depend on the circumstances. This lesson will help you not only answer requests for parking accommodations, but also avoid mishandling requests in a way that could lead to discrimination claims. 

First, we’ll explain landlords’ duty to provide reasonable accommodations and how fair housing law applies in the context of accessible parking. Then, we’ll give you seven rules to follow to ensure that your staff is prepared to properly process and make legally sound decisions if and when applicants and tenants actually do request parking accommodations. At the end of the lesson, you can take the Coach’s Quiz to see how much you’ve learned.   

WHAT DOES THE LAW SAY?

Disability is one of the seven grounds the federal Fair Housing Act (FHA) protects from discrimination (the others are race, color, religion, national origin, sex, and familial status). One form of disability discrimination banned by the FHA is “refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”

“Disability” is defined broadly as including individuals who have or are regarded as having a physical or mental impairment that substantially limits one or more “major life activities.” The latter term is defined as including walking and other activities of central importance to daily life, such as seeing, hearing, breathing, performing manual tasks, caring for one’s self, learning, and speaking.

Bottom Line: Conditions that substantially limit mobility are deemed disabilities, regardless of whether they’re plain to see or due to heart disease, muscle weakness, shortness of breath, or other physical and mental conditions that aren’t readily apparent.

Reasonable Accommodations vs. Reasonable Modifications. Section 3604(f)(3)(A) of the FHA includes a parallel ban on refusal to allow “reasonable modifications of existing premises.” Like reasonable accommodations, reasonable modifications are reasonable changes necessary to afford a disabled applicant or tenant “full enjoyment” of the premises. But there are two important differences:  

• A reasonable modification is a structural change made to the property, while a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service;
• More significantly, tenants are responsible for the costs of modifications while landlords must pay for accommodations.  

Requests for parking spaces are generally requests for a reasonable accommodation, rather than a reasonable modification, according to Department of Housing and Urban Development (HUD) Guidelines (Joint Statement of [HUD] and the Department of Justice Reasonable Modifications under the [FHA], March 5, 2008) (which we’ll refer to as the Guidelines). Result: Landlords must pay the costs of required parking accommodations, which may include:

• Providing reserved, designated, or accessible parking spaces;
• Waiving a first-come, first-served parking policy;
• Creating and posting signs;
• Repainting parking markers;
• Redistributing parking spaces; and
• Creating curb cuts.

TIME OUT!

How Many Accessible Spaces Are Required?

The number of accessible parking spaces your property must have depends on several factors: the date of the building’s construction, its type of funding, and the state in which the property is located.

In addition to other applicable federal, state, and local laws, the FHA requires all new multifamily housing built after 1991 to be accessible and usable by people with disabilities. Among other things, the FHA’s design and construction standards require accessible and usable public and common use areas, including minimal levels for accessible parking for tenants and visitors. If parking is provided on the property, the rules call for accessible parking on a route accessible to people in wheelchairs for at least 2 percent of the dwelling units.

This question usually comes up during new construction, but it could also come into play if you’re considering whether to assign an existing accessible space to satisfy a tenant’s reasonable accommodation request. Don’t do it, attorneys warn, if your property has only enough accessible spaces to meet the minimum requirements under applicable federal, state, and local laws, because doing so would cause the property to fall below required threshold requirements.

Also, make sure your leasing office has enough accessible parking under the Americans With Disabilities Act (ADA). In general, it’s the FHA—not the ADA—that applies to conventional housing properties. But because the leasing office is open to the public, it’s considered a public accommodation, so it must meet the ADA’s requirements for accessible parking.

7 RULES FOR HANDLING REQUESTS

FOR DISABILITY-RELATED PARKING ACCOMMODATIONS

Rule #1: Respond to All Requests for Accommodations

You don’t have to make accommodations unless they’re requested. Nor are you required to grant any and every accommodation request. But you do at least have to consider any accommodations requests you receive, no matter how baseless and frivolous you think they are. 

Such an assumption may arise when the requestor doesn’t appear to be disabled. Don’t ignore a request for an assigned parking space close to a building, for example, simply because the person who requests it doesn’t use a wheelchair, cane, or display any other outward appearance of a disability. Remember that the FHA definition of “disability” encompasses non-obvious or readily visible conditions that may impair a person’s mobility, including heart and lung disease.

Example: A Maryland administrative judge ordered a condominium community to pay $10,000 for refusing a disabled tenant’s request to restore a reserved parking space that the community took away as part of a repaving project. The community concluded that the tenant didn’t need her reserved parking space anymore because she was no longer disabled. But that opinion, the court noted, was based purely on the tenant’s outward appearance without any evidence to support it [Smith v. Windgate Condominium Council, July 2014]. 

Exception: Courts have ruled that landlords aren’t obliged to grant accommodations requested by disabled individuals who aren’t legally authorized tenants of the property.

Example: The son of a trailer park tenant, whose name wasn’t on the lease, refused to pay rent or leave the unit after his father died. He also asked the landlord to accommodate his disability by waiving park rules and allowing him to store his car immediately next to his mobile home. When the landlord refused, he sued for disability discrimination. But the California federal court tossed the case without a trial, finding that the FHC duty to accommodate doesn’t cover a person who never entered into a lease or paid rent to a landlord [Salisbury v. City of Santa Monica, 2021 U.S. App. LEXIS 16848].

Rule #2: Don’t Reject Accommodations Because of How or When They’re Requested

Those seeking accommodations needn’t use the phrase “reasonable accommodations,” “fair housing,” or any other magic words. All they have to do, according to the HUD Guidelines, is make it clear that they’re requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability. Nor does the FHA require that a request be made in any particular manner or at any particular time. Key things to keep in mind:

• Accommodation requests can be made by applicants as well as tenants at the start of or at any time during their tenancy;
• You can ask applicants and tenants to put their requests in writing, but you can’t require them to do so; and
• A family member, guardian, or other third party may request a reasonable accommodation on a disabled applicant or tenant’s behalf—although a third party can’t demand a parking accommodation solely for their own benefit, as illustrated by the Salisbury case above.

Coach’s Tip: HUD recommends that landlords create forms and procedures that people can use to submit written requests for parking and other accommodations. This can help facilitate the processing of requests and “prevent misunderstandings regarding what is being requested, or whether the request was made.” However, the Guidelines add, landlords “must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the [landlord’s] preferred forms or procedures for making such requests.”

Rule #3: Properly Verify the Tenant’s Disability and Need for the Accommodation

The next challenge is to process the parking accommodation requests you receive in a legally sound way. Normally, you’re not allowed to ask applicants or tenants if they’re disabled or about the nature and extent of their disability. However, the Guidelines give landlords some leeway to gather information about a person’s disability in response to a reasonable accommodation request to the extent the information is necessary to determine three things:

1. That the person meets the FHA definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities;
2. Exactly what accommodation is being requested; and
3. Whether there’s a “nexus” or relationship between the disability and the need for the requested accommodation.  

Example: A tenant with Alzheimer’s requested an assigned parking space, but his landlord said no. The California federal court dismissed the tenant’s failure-to-accommodate claims because of the lack of evidence showing how having an assigned parking spot was an accommodation necessary to “ameliorate the effects” of his disability [Elliott v. QF Circa, Case No. 16-cv-0288-BAS-AGS, June 18, 2018].  

There are limits to what information you can and can’t ask for, depending on what you already know, to make these determinations.

• If the person’s disability and need for the accommodation are obvious, or otherwise known to you, you can’t request any additional information about the disability or disability-related need for the accommodation.
• If the disability is known or readily apparent to you, but the need for the accommodation is not, you may request only information that’s necessary to evaluate the disability-related need for the accommodation.

Example: An applicant with an obvious mobility impairment who regularly uses a walker to move around asks her housing provider to assign her a parking space near the entrance to the building instead of a space located in another part of the parking lot. Since the physical disability (difficulty walking) and the disability-related need for the requested accommodation are both readily apparent, the landlord can’t require the applicant to provide any additional information about her disability or need for the requested accommodation [Guidelines].

You may be able to get the information you need to verify that the person meets the FHA definition of disability directly from the requestors themselves, for example, in the form of credible statements from the individuals, or the fact they have government-issued disability license plates or placards on their vehicle or receive Supplemental Security Income or Social Security Disability Insurance benefits despite being under age 65.

If necessary, the Guidelines say landlords can also seek verification from a doctor or other medical professional, peer support group, non-medical service agency, or reliable third party in a position to know about the individual’s disability. However, they must limit the request to only the information needed to verify the disability and need for the accommodation.  

Rule #4: Determine If the Requested Accommodation Is Reasonable

You need only grant requested accommodations that are reasonable. According to HUD, a request for an accommodation is reasonable if it:

• Doesn’t cause landlords to incur an undue financial and administrative burden;
• Doesn’t cause a basic or fundamental change in the nature of the housing program available;
• Won’t cause harm or damage to others; and
• Isn’t technologically possible.

These criteria are critical, so let’s look at them more closely.

Financial and administrative burden. You can’t deem a requested accommodation unreasonable simply because it costs time and money to provide. The burden must be “undue,” based on the accommodation’s costs, the landlord’s financial resources, the benefits to the requestor, and the availability of cheaper, easier alternatives that would effectively meet the requestor’s needs. For example, paving over a playground to create new parking spaces would most likely constitute an undue burden.

Fundamental alteration. Accommodations require “fundamental alterations” when they alter the essential nature of a landlord’s operations. For example, a mobility-impaired tenant’s request for his landlord to transport him to the grocery store and help him with his grocery shopping wouldn’t be a reasonable accommodation to the extent that the landlord doesn’t provide any transportation or shopping services for any of its tenants [Guidelines].

Harm or damage to others. In the parking accommodations context, this basically means that you don’t have to take away the reserved space of one disabled tenant to accommodate another.

Technologically impossible. This criterion is highly unlikely to apply in a parking accommodations request. To the extent physical alterations are involved, the issue will probably be about costs.

Coach’s Tip: If you do determine that a requested parking accommodation is unreasonable, for whatever reason, it’s a good idea to consult an attorney for advice before notifying the requestor of your decision.

Rule #5: Offer Alternatives to Unreasonable Accommodations

The accommodations process doesn’t end simply because you conclude that a requested parking accommodation is unreasonable. Before you reject the request, you need to dig deeper and consider whether there are any reasonable alternative accommodations you could provide to meet the requestor’s needs.

Example: Let’s go back to the example above where a disabled tenant’s request that a landlord drive him to the grocery store would be deemed an unreasonable accommodation to the extent such services aren’t offered to any tenants. Even though the landlord can deny the request, it should consider alternatives that would meet the tenant’s needs without forcing a fundamental alteration of operations. For example, maybe it can alter its parking policy to allow a local volunteer to park her car close to the tenant’s apartment so she can drive him to the store and help him shop for groceries.

The Guidelines call on landlords to engage the requestor in an “interactive process” to discuss alternatives. The landlord can even use this approach when a requested accommodation is reasonable but simpler and less costly alternatives would be just as effective. However, HUD cautions, landlords need to keep in mind that these suggested alternatives are just that, suggestions. If an accommodation is reasonable, the requestor isn’t obligated to accept any of your suggested alternatives.

Coach’s Tip: Don’t take away parking spaces previously assigned to disabled tenants based on an assessment of who’s “more disabled” and needs them the most. If you reach the point where there’s no more reserved or designated accessible parking available, grant requests in the order received and establish a waiting list for assigning spaces that open up based on which disabled tenant has been waiting the longest.

Rule #6: Don’t Ask for Extra Fees or Deposits for Parking Accommodations

You’re not allowed to charge a fee for processing or granting a reasonable accommodation request. Nor can you require the requestor to make a deposit to receive the accommodation once you determine that the request is reasonable. Charging extra fees and security deposits is one of the most common ways landlords get into trouble, especially when parking accommodations entail monetary costs or additional liability risks.

Example: A Pennsylvania senior housing provider had to shell out $80,000 to settle discrimination claims made by mobility-impaired tenants and fair housing agencies, including for allegedly charging disabled tenants as much as $350 for designated parking spaces necessary to make their apartments accessible [Clover Group, May 2020].

Rule #7: Don’t Mark the Space with the Tenant’s Name or Unit Number

The personal information you collect to process an applicant or tenant’s request for a disability-related parking accommodation is protected by privacy laws. As a result, you must keep the information confidential.

One common pitfall arises when landlords post a sign or mark the space as reserved for a disabled tenant. While this may be necessary to prevent others from parking in the space, it becomes problematic when the sign identifies the name or unit number of the tenant for whom the space is reserved, especially when the tenant’s disability isn’t readily apparent or known to people who read the sign.

Solution: Limit signs and markings to phrases like “Space Reserved” or “Permit Parking Only,” without mentioning anything about the person for whom it’s reserved. Even designating the space as being reserved for use by the disabled is inadvisable since other tenants and visitors with government-issued disability license plates may think they’re entitled to use the space themselves.