Q: I put a paver walk partially on common grounds five years ago for my handicapped wife to walk on. Some people in my community are now saying I need to move it. Is it too late for them to make this claim legally? There are many violations in our community that are never enforced.
A: Your issue raises a couple questions. First, how long does a community association have to enforce a rules violation, and what is the association’s ability to take legal action against you when it neglects to take action against other violations? Second, does your wife have the right to continue using the walkway under fair housing laws due to a handicap? As to the first question, we generally advise community associations to take relatively prompt and consistent action when it comes to rules enforcement. If the violation is open and known to all Board members and the association fails to take action for a year or more, it will be increasingly difficult for the association to prevail in any litigation to enforce the stale violation. Certainly if an open violation continues for five years or more without action by the association,
you have a relatively strong chance of prevailing in court if the association tried to take action now. Regarding the handicap issue, we are seeing more and more claims against community associations from those claiming exemptions to rules due to a disability or handicap. The most common claim involves service or emotional support animals, but we have handled other claims similar to yours. The general rule is that your wife is entitled to a reasonable accommodation from the association that would allow her an equal opportunity to use and enjoy her property. Assuming the lengthy delay by the association was not an issue, the association may require you to consider alternatives such as building the walkway in an area that is less intrusive or more aesthetically pleasing, but generally an association cannot strictly deny a reasonable request from a disabled or handicapped resident, particularly if the request will have a minimal impact on other residents.