Once a month, I receive a publication from Community Association Institute called, “CAI Law Reporter.” This newsletter provides updates on current lawsuits throughout the country that may have an impact on HOAs. I am continually surprised at the many ways in which a board can get itself embroiled in a lawsuit that it so easily could have avoided if that board had simply considered a variance (to allow something that would otherwise not be permitted due to conflict with the rules of the HOA). Now, I am not suggesting, as could be interpreted, that boards, when faced with a potentially litigious owner, should simply cave in and allow that owner to do whatever he or she wants (or has already done). What I am suggesting, however, is that boards should use some common sense when faced with a gray area.
What are some of the gray areas that seem worthy of a variance? Certainly anything that pertains to a disabled or handicapped resident’s needs. Another possibility is with active duty military personnel, who may need a variance while they are serving overseas. Finally, an owner with a significant crisis in his/her life (sudden death or terminal/critical illness of a loved one) may need a variance while he/she copes with that reality. The variance may be something as simple as waiving late fees for a month or two, or it may be as complex as permitting a companion animal, the installation of a ramp, or the use of a golf cart for those with mobility challenges.
When one of these gray areas appears before the board, what should the board do? First, the board is within its rights to ask for documentation. In the case of military personnel, we might ask for copies of the deployment paperwork. For a medical issue, a letter from the doctor confirming the need for the variance (although boards should use caution - the doctor doesn't have to disclose the patient's diagnosis nor why, for example, that patient requires a companion animal for his/her treatment and/or health). Second, the board must give the requested party time to get that paperwork together (30 days should be sufficient) and to them before taking further enforcement steps. Finally, it is wise to offer the owner an opportunity to present his/her case before the board, whether or not the owner chooses to exercise that opportunity. Finally, if the board grants the variance, the variance granted should be put in writing and should include clear and specific language about what exactly this variance allows, for example:
- Mr. Smith may install a ramp for access to and from his unit. Mr. Smith is responsible for the cost of the installation and the ongoing maintenance required for it as long as he owns his unit.
- During her period of deployment in Iraq, Ms. Jones’ monthly assessment may be received within thirty days (in lieu of ten) of the due date to be considered received on time. Once her deployment period has expired, Ms. Jones’ assessments will be considered late if not received by the tenth day of the month due.
If the board is not going to grant a variance, especially for a disabled or handicapped owner or resident, the board should discuss the matter with their legal representative prior to denying that variance. There may be legal ramifications to such a decision that the board may be unaware of, including violating the Fair Housing Act. It’s cheaper to spend a little money to get the attorney’s opinion now than to fight a bad lawsuit in the future.
Should the board be in the habit of granting variances? In my opinion, no. But variances should be carefully considered if there are significant, substantiated reasons for doing so.