“Private Deed Restrictions and Disability”
This December I was contacted by a woman, let’s call her Jackie (not her real name). Jackie was in a dispute with a neighbor. The dispute involved Jackie’s placement of a deck and a wheelchair ramp along the side of her house in between her house and that of her neighbor. The ramp allowed Jackie to have easy and safe access to an entrance to her home, and a deck enabled her to enjoy her side yard. The issue with the neighbor arose because the width of the ramping and deck came within two feet of the neighbor’s property line, and the neighbor’s house was built very close to that line. The neighbor tried to block the installation of the deck and ramp.
Typically, these disputes involve compliance with public zoning regulations, but in this case the point of contention was a private restriction in the deed to Jackie’s property. At one point, Jackie’s land and that of her neighbor had been one parcel. When a portion of that parcel was sold to Jackie, a deed restriction in Jackie’s deed was included that prohibited Jackie from building any structure within 15 feet of the property line that separates her from the now complaining neighbor.
This posed an interesting problem. Jackie went to the zoning board to obtain a permit and applied for a variance because the zoning code also had certain property line setback requirements that would be violated by the size and width of the deck and ramping. Jackie received an exception to the zoning code and a permit to build based on her disability and the granting of a reasonable accommodation under Title II of the ADA. Based on the permit, Jackie added her deck and ramp. However, in her case, the neighbor objected, properly pointing out that while a public zoning board can adjust public land regulations, it has no authority to adjust a private restriction contained in a deed. The deed restriction can be enforced by the neighbor unless the neighbor voluntarily consents to waive the restriction. The neighbor sued for removal of the deck and ramp.
Even though she has a disability, Jackie does not have a remedy or a defense against her neighbor under the ADA because the ADA Title II does not apply directly to this private deed restriction. ADA Title II applies to programs, services, and activities of state and local government. This means it applies to everything that a planning and zoning office might do in regulating land uses. It does not apply to purely private land restrictions. However, Jackie does have a remedy under the Fair Housing Act (FHA). Under the FHA, Jackie can sue her neighbor for violating her right to a reasonable accommodation with respect to the private deed restriction. Jackie had formally requested a reasonable accommodation from her neighbor to permit the building of the ramp and deck. The neighbor said no. The neighbor must consider the request in terms of is it reasonable (does it impose an undue financial or administrative burden), are the deck and ramp necessary to address the disability so that Jackie can enjoy her property in a way similar to others without a disability, and does granting the accommodation fundamentally alter the ability to use the property. Of course, while not determinant, the conclusion of public zoning officials in favor of issuing a permit provided some evidence of reasonableness on the matter. Nonetheless the case must be made, and a decision is reviewable in court.
Jackie referred her case to the Department of Housing and Urban Development (HUD) alleging discrimination by the neighbor for failure to grant her a reasonable accommodation. This is one path to consider when seeking to address such matters. HUD agreed to take up the matter. This way the case is handled by HUD and Jackie does not have to take the neighbor to court on her own. Failure by the neighbor to grant a reasonable accommodation is actionable discrimination under federal law.
The lesson here, is that private deed restrictions must comply with our disability laws. Just because a land regulation is created under private law, as opposed to public land use and zoning law, does not mean that disability law is inapplicable. Even when the ADA does not apply, the FHA accomplishes the same outcome in many situations.
(A version of this article appeared in the Jan. issue of The Republican Newspaper, Danville, IN – serving Hendricks County)