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An Arizona appellate court has considered whether a homeowner's association violated the federal Fair Housing Act ("Act") and state fair housing laws when it refused to waive the association's minimum age requirement for a couple who sought to have their twenty-six year old handicapped son live with them.
Ralph and Margaret Canady ("Parents") agreed to purchase the home of Pamela Garapich ("Seller"). The Seller's home was located in Prescott Canyon Estates ("Community"). The Community requires that at least one person of fifty-five years of age or older reside in each unit, and prohibits anyone younger than thirty-five years old from living in the Community. The Parents intended to have their twenty-six year old son Scott, who was severely developmentally disabled, live with them in the Community.
When the Community's president learned of the Parents' purchase of the Seller's home, he contacted the Seller and informed her that no one younger than thirty-five years old could live in the Community. The Seller contacted the Parents, and the parties agreed to terminate the purchase agreement. The Parents and the Seller then filed a complaint with the Arizona Attorney General's office against the Community. The Attorney General found that there was reasonable cause to believe that the Community had engaged in unlawful discrimination under the state's fair housing laws by denying the Parents the right to purchase a home in the community based on their son's condition. A lawsuit was filed, which the Parents and Seller joined, and the trial court ruled that the Community's actions did not constitute an unlawful discrimination because the Community's age restriction was lawful and did not discriminate based on an individual's disability. The Parents and the Seller appealed.
The Court of Appeals of Arizona reversed the trial court's decision. The Act prohibits discrimination in the sale or rental of housing "because of a handicap of- (A) that buyer or renter; (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that buyer or renter." The definition of discrimination includes "a refusal to make reasonable accommodations in rules, policies...when such accommodations may be necessary to afford such person equal opportunity to use and enjoy such a dwelling." The Act contains an exemption for "housing for older persons" from charges of discrimination based on familial status (i.e., discrimination directed at families with children), and housing for older persons is eligible for this exemption when: (1) eighty percent of the residents are 55 or older; (2) the community has rules and restrictions which demonstrate its intent to be housing for older persons; and (3) the community complies with the rules for verification of occupancy. However, nowhere in the Act is there an exemption for handicap discrimination by a "housing for older persons" community.
The court found that the Act contains an affirmative duty to reasonably accommodate disabled persons. The duty to accommodate could include changing or not enforcing an otherwise valid policy in order to allow a disabled person to gain access to the housing of their choice. Here, the Association did not make a reasonable attempt to accommodate the Parents' plan to live with their son. The court rejected the Community's argument that to act otherwise could jeopardize the Community's status as "housing for older persons," finding that at least one of the Parents was over 55 years old.
The court also rejected the arguments that letting the Parents' son live in the Community would jeopardize its exempt status under the Act for not following its rules nor would it create a flood of younger people trying to move into the community. The court found that one reasonable accommodation would not undermine the entire purpose of the Community because only a small group of people could qualify for such an accommodation. Thus, the trial court was reversed and judgment was ordered entered in favor of the Parents and Seller. The court also awarded attorney's fees and costs to the Parents and the Seller for the appeal, and ordered the trial court to consider whether the Parents and Seller were entitled to recover these fees and costs from the earlier proceedings before the trial court.
Canady v. Prescott Canyon Estates Homeowners Assoc., 60 P.3d 231 (Ariz. Ct. App. 2002).