Page 6 - New England Condominium November 2019

6 NEW ENGLAND CONDOMINIUM -NOVEMBER 2019 NEWENGLANDCONDO.COM CONT... is over 100 years old. The single elevator required modernization and refurbish- ing. “The board really had to think a lot about the project, and about this prob- lem,” Duggin says. “We had people in the building, one family in particular, where someone was disabled and used a wheel- chair. There was no way this resident could go up and down the stairs. Another resident had two very large dogs, and they couldn’t go up and down numerous times a day, either. There was no way we could accommodate them. In the end, the board did arrange to do the work during the summer months when many people were away on vacation. The resident with the dogs had a summer home and went there for the duration of the project. The dis- abled resident stayed with a family mem- ber elsewhere. For other residents who were able to go up and down the stairs, we accommodated them by hiring extra staff to help people with their groceries, lug- gage, etc. We placed chairs on each land- ing and provided cold bottles of water for anyone who was tired or overheated.” Another example of community out- reach during an elevator upgrade played out at a close-knit, mid-size co-op in Up- per Manhattan’s Hudson Heights neigh- borhood. Built in 1939, the 56-unit build- ing has only one elevator. The cab and equipment were completely refurbished a few years back, presenting the co-op com- munity with a very unique set of chal- lenges. The building was home to about half a dozen residents who were past 90 years of age – all living above the fourth floor. Hope Kaye has been a resident of the co-op for 15 years, and says that most of the elders were former refugees from Eastern Europe during World War II, and as such were perhaps less likely to ask for help than others might be. According to Kaye, those who had children didn’t have them living close by. In order to support and assist their neighbors, the community became proactive. “One unique aspect of the problem was that these six elderly shareholders took their lunch every day at a senior center around the corner at a synagogue social program,” Kaye explains. “Their social lives required them to leave the building daily. So we set up a protocol to help them without asking them if they needed help. We placed folding chairs on each landing to provide a ‘rest stop’ after each flight of stairs. We also organized a program to check in on them, and offered to do their maintain the common areas of the condo- errands – things like food shopping, pick- ing up dry cleaning, etc., that they might vicing a seven-story building is out of ser- not be comfortable asking a neighbor to vice, the trustees have a duty to repair it in their trustees provide alternative hous- do. For those who wanted to do their own a timely manner. With respect to whether ing...for the duration of the repair work, shopping, we had the super and residents the trustees may be liable to unit owners the trustees would have a duty to work who were home during the day on look- out to help them carry their bags up the their units, the answer is complicated and request, provided that the request did not stairs. We did a similar thing with garbage depends on the facts and circumstances impose an undue hardship on the condo- disposal. All garbage must be sorted for of the case.” recycling, and so had to be carried down to the first-floor collection area, because this contingency exist at all levels. Ac- building’s garbage chute was sealed up cording to Goldman, “The Federal Fair ly – and for that reason would most likely years ago. We made sure that when we Housing Act (42 USC sec. 3604) and not be required. The trustees do not have took down our garbage, we took down state anti-discrimination statute (M.G.L. an affirmative duty to provide alternative theirs, too.” Kaye says the elevator project took ap- proximately six weeks. “If anything,” she dominiums, and expressly prohibit dis- says, “the project, and the way we handled ability-based discrimination. Pursuant plies in a landlord/tenant relationship. A it brought us closer as a community.” Another important consideration when it comes to navigating a major el- evator project is to enforce the time frame ing the time an elevator is out of service. ect, co-op and condominium boards and schedule set out by the elevator con- tractor in their refurbishment or replace- ment contract. According to Duggan, mental impairment which substantially and determine who, if anyone, will need “The contract the building signs with the limits one or more major life activities, accommodations and how those can be company doing the work will contain a that they made a request for an accommo- clause specifying a timeline and comple- tion date. If that timeline and date are not the request was reasonable and necessary too late. It’s always better to be commu- met, the contract will contain penalties.” to afford them the equal opportunity to nicative and proactive, rather than tight- While delays in any type of construction use and enjoy their dwelling.” work are typical, when it comes to some- thing as crucial to the community as el- evator work, both the board of directors accommodation is ‘reasonable.’ “Instead,” and expect that there may be requests for and management need to stay on top of Goldman continues, “courts interpret- the situation to minimize the inevitable ing Fair Housing Law violations make before, during and after the bid process disruption. The Legal Angle What are the real liabilities a co-op or hardship the condominium association requests. condo board should consider before pro- ceeding with an elevator project? Howard request.” He explains further that the cri- S. Goldman, an attorney and principal teria for determining whether an accom- with Needham, Massachusetts-based law modation request crosses over into undue firm Goldman & Pease, explains: “As set forth in the Declaration of cost of the accommodation, the overall Trust establishing the condominium, the size of the property – including the num- trustees of an association have a duty to ber and type of units – and the size of the minium. Thus, when the sole elevator ser- who depend on the elevator for access to with that unit owner to accommodate the Laws, rules and regulations affecting ues. “But, of course, paying to relocate an c. 151B) – \[known\] collectively as ‘Fair housing, unlike \[the\] duty imposed upon Housing Laws’ – are applicable to con- to these, trustees could be liable to unit condominium should consider obtaining owners for failure to accommodate a re- quest for reasonable accommodation dur- The unit owner would bear the burden of should be proactive and communicative, establishing that they have a physical or and should reach out to all the occupants dation related to that disability, and that all, and do not ignore the issue until it is All that being said, there is no bright- line test to determine whether a requested is too late. Each board should understand fact-specific determinations of whether and during the pendency of the work, be a request is reasonable given any undue ready to assist and respond to reasonable might incur in order to comply with the hardship territory include the nature and condominium’s budget and available re- serves. “If a disabled unit owner requests that minium association,” Goldman contin- aggrieved unit owner would be very cost- a landlord renting his or her unit via the Warranty of Habitability. That only ap- what’s known as an equipment breakdown rider to its insurance. It provides coverage for the repair costs, but \[trustees\] should also inquire if dollars are available for temporarily relocating unit owners and/ or tenants. In the end, however, given the fact-specific nature of Fair Housing Law violations, the trustees should err on the side of caution and always consult an at- torney to determine the best course of ac- tion to avoid liability.” When it comes to something as cru- cial – and as potentially disruptive – as a major elevator repair/replacement proj- reasonably made. Open a dialogue with lipped and reactive. The worst thing that can be done is ignoring the issue until it accommodations and should, at all times n A J Sidransky is a staff writer/reporter with New England Condominium, and a published novelist. ELEVATOR... continued from page 1 “Paying to relocate an aggrieved unit owner would be very costly – and for that reason would most likely not be required.” — Howard Goldman