Because condominiums are not public accommodations, they are not subject to the Americans with Disabilities Act. They are subject to the Fair Housing Act. However, in the context of making modifications for accessibility, Michigan has its own scheme under the Condominium Act, MCL 559.147a.
Who Qualifies?
The section applies to persons with disabilities, but they do not need to be on title, nor even permanent residents. The Act specifies, “persons with disabilities who reside in or regularly visit the unit.” MCL 559.147a(1).
What Qualifies?
The Act lists, “to facilitate access to movement within the unit.” The most common modifications are ramps (access to) and chair lifts (movement within). However, the act also lists, “or to alleviate conditions that could be hazardous to persons with disabilities.” We have reviewed and approved plans for custom electrical and plumbing work falling under this provision. MCL 559.147a(1)
Modifying the General Common Elements
The Act can entitle Co-owners to modify General Common Elements, including outdoor areas. It states, “including improvements or modifications to common elements and to the route from the public way to the door of the co-owner’s condominium unit.” We have seen instances where Co-owners had to install extraordinarily long ramps to achieve an appropriate gradient for wheelchair access for elevated Unit doors. This necessarily requires extending the ramp across the General Common Elements. MCL 559.147a(1).
General Restrictions
The modification cannot impair structural integrity or lessen support. MCL 559.147a(1).
The modification must comply with state and local codes and ordinances. MCL 559.147a(1).
The modification must conform as closely as possible with the restrictions of the Condominium Documents, including aesthetics. MCL 559.147a(1).
The modification cannot unreasonably prevent passage by other residents. MCL 559.147a(2).
The Co-owner must insure the modification. MCL 559.147a(3).
Who Pays?
The Co-owner makes any improvements or modifications at their own expense and is also liable for the costs of repairing any damage to a Common Element caused by building or maintaining the modification. MCL 559.147a(1).
The Co-owner pays for removal. MCL 559.147a(2).
The Co-owner pays for insurance on the modification. MCL 559.147a(3).
The Association pays for maintenance, repair, and replacement only if the modification replaces or covers Common Elements for which the Association is responsible, and the modification does not increase costs. The Co-owner is responsible for any increased costs. MCL 559.147a(3).
The Application Process
The Co-owner must submit plans and specifications to the Association in advance of doing any work. The Association has 60 days to approve or deny the modification. If the Association fails to act within 60 days, then the Co-owner may proceed without approval. If the Association denies the modification, then it must send the Co-owner a list of changes that would make it acceptable. MCL 559.147a(4).
Removal
The Co-owner must give the Association written notice 30 days before selling or leasing the Unit. When the 30 days passes, the Association may require the Co-owner to remove the modification at the Co-owner’s expense. If the Co-owner fails to give notice, then the Association may require the Co-owner to remove the modification, or the Association may remove it at the Co-owner’s expense, at any time. There are two exceptions to the removal requirement. First, if the Co-owner plans to resume using the modification within 12 months. This covers seasonal travel or short nursing home stays. Second, if the Co-owner sells or leases the Unit to someone who would also qualify for the modification. MCL 559.147a(2).
Current Needs only
The Condominium Act covers the current needs of persons with disabilities. When defining “person with disabilities,” the Condominium Act defers to the state construction code act. (Subsection 7). The Stille-Derossett-Hale Single State Construction Code Act additional definitions, MCL 125.1502a, defines person with disabilities as “an individual whose physical characteristics limit that individual’s ability to be self-reliant in the individual’s movement throughout and use of the building environment.” If the person does not have physical characteristics that limit their ability to be self-reliant in his movement through the environment, then he does not currently meet the definition of a person with disabilities under the construction code. Therefore, they also would not meet the definition of a person with disabilities under the Condominium Act. In that case, the Condominium Act does not automatically entitle the Co-owner to modifications. This means there is no guaranteed right to use its provisions for general accessible design or futureproofing.
We Can Help
Do you have questions about condominium modifications for accessibility? We have years of experience with these matters and other issues facing condominiums and homeowners associations. Please reach out to us at (248) 349-6203 or email us using the form below.
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