Premises Liability Negligent Fall & Safety Risk Handicap Guest - Condo Association

[kate117]

Hi, I an owner of a condominium here in MA/Boston. The Condo is a small (two person) association including myself and the owner of the other condo. For the past six months my nightmare condo neighbor has had someone living with her. This person is about 65 yrs old, extremely overweight and walks with a cane. She has a handicap parking permit in her car, so she clearly is also handicap . My condo neighbor has two exterior stairway exits. One being her front door (with 3 small steps leading to her door) and the other being a side stairway leading up to her condo on the 2nd level. My neighbor and her guest use this "fire escape" stairway to enter and exit the condo every day/night, they never use the front door exit. There are probably about 20 steps in total on this "fire escape" stairway and it's about 30 ft in height. My condo neighbors handicap, overweight "guest" walks down backwards on the stairs when she exits the condo. As a registered nurse who works in geriatrics I know this a huge fall and safety risk. My concern is with the winter coming, and these steps always being extremely icy/slippery, that my neighbors handicap guest is putting herself at a huge risk to fall down these "fire escape" like steps. How would this work if she is to fall and file a claim against the home owners insurance, since I wouldn't put it past these people? I'm not sure if my neighbors exterior steps would be considered as the "common area", I don't think they are, but I'm not sure. If my neighbor was sane I would raise my concern to her, but this lady is impossible to talk to and mentally unstable. The only way to deal with her is to ignore her. Unfortunately talking to her is not an option.

 

[army judge]

Read your association documents and charter.
The documents might provide you with some answers.
You could also consult a tort attorney, or even a general practice attorney in your area.

Most homeowners associations only allow guests to stay a limited time, a week, ten days, or a fortnight.
As your co-owner has had this "guest" for six months, she may be in violation of your HOA rules.

However, as she is difficult to communicate with, your only solution might be to begin documenting everything about this odd situation.
If possible, take video, pictures as she and her guest attempt to traverse the stairs.
You can also maintain a log of their comings and goings, if something awful does happen.

If the guest were to be hurt, I don't see any personal liability for you.
If that worries you, you can discuss increasing the liability portion of your homeowners policy.
Personally, I also maintain an umbrella personal liability policy.
They are very affordable, and they certainly assuage any fears I have about odd events and occurrences.

 

[kate117]

Thank you for the reply. I will review my homeowners insurance policy tonight.

I have read the Master Deed and documents I have on the Condominium, and strangely there is nothing in the documents that limits or mentions the length of stay guests are allowed. I know most HOA's do have a limit on how long guests can stay. For all I know the other co-owner could be renting to her "guest" who has been living with her for more than 6 months.

All the Master deed states about the stairways is as follows: "Each unit shall have the exclusive right and easement to use the deck, patio, yard area, porch or STAIRWAY to which each unit has immediate access, as more particularly shown on the Site Plan attached hereto, subject to the rights of other unit owners to use such areas to access their units and or storage areas." This stairway in question is only for access to her condo unit, not mine. There is also another clause that states " The common areas and facilities of the Condominium thereinafter referred to as "the common elements") consists of : (c) the exterior entrance walks and steps, and if any, the entrance doors and lobbies, vestibules, exterior decks, halls and corridors serving more than one Unit. Again, this stairway only serves her unit, so my assumption is that the stairway isn't a common area. Unfortunately the Site Plan does not clearly indicated which areas are aren't common areas.

Do you know since this "guest" is handicap, if there is a law or requirement that the condo needs to be handicap accessible for them?

It does sound like I may have to contact a lawyer to better clarify and interpret the Master Deed for the Condominium. And yes, my best bet sounds like to try and discreetly take some pictures and document when this "guest" uses the stairway incase there is an incident.

Thanks again for your help.

 

[ElleMD]

No, you do not have to put in a ramp for a guest.

 

[kate117]

What if this "guest" is a "tenant" and renting a room? I'm actually not sure what this person is who has been staying with the co-owner. The other co-owner didn't inform me she was "renting" or having a tenant move in, but who knows...considering she's been living with the co-owner for over 6 months now.

 

[ElleMD]

The ADA does not require this even then.

 

[army judge]

What if this "guest" is a "tenant" and renting a room? I'm actually not sure what this person is who has been staying with the co-owner. The other co-owner didn't inform me she was "renting" or having a tenant move in, but who knows...considering she's been living with the co-owner for over 6 months now.

Your state, MA, has some very solid laws regarding the disabled or for handicapped persons.

Take a look at this informative brochure:


http://www.mass.gov/anf/docs/mod/disability-law-booklet-2012-revision.pdf

There might be something to assist you, or a point of contact to make sure the "guest" doesn't end up like Humpty Dumpty.

I don't see any liability that attaches to, as you aren't tied to the "guest" in so much as even knowing her name. If, however, the "guest" suffers injuries; your documentation should keep you safe.

By the way, what happens if your co-owner dies, and her heirs no longer wish to co-own the building?
Do you get to buy out her interests with right if first refusal?
What if she were to go bankrupt?
You don't have the normal protections afforded by most HOAS. In fact, you may not even be a HOA.
You really need to have a real estate attorney go over everything.
If anything, you're exposed more there than with the "guest" being injured.

 

[ElleMD]

Does the ADA cover private apartments and homes?

The ADA does not cover strictly residential private apartments and homes. If, however, a place of public accommodation, such as a doctor's office or day care center, is located in a private residence, those portions of the residence used for that purpose are subject to the ADA's requirements. Similarly, the leasing office of an apartment building or apartment complex, as well as a model apartment or home used for sales purposes, is a place of public accommodation subject to the ADA's requirements.



http://ago.mo.gov/faqs/Americans-with-Disabilities-Act-ADA.htm#header1e

 

[kate117]

Your state, MA, has some very solid laws regarding the disabled or for handicapped persons.

Take a look at this informative brochure:

There might be something to assist you, or a point of contact to make sure the "guest" doesn't end up like Humpty Dumpty.

I don't see any liability that attaches to, as you aren't tied to the "guest" in so much as even knowing her name. If, however, the "guest" suffers injuries; your documentation should keep you safe.

By the way, what happens if your co-owner dies, and her heirs no longer wish to co-own the building?
Do you get to buy out her interests with right if first refusal?
What if she were to go bankrupt?
You don't have the normal protections afforded by most HOAS. In fact, you may not even be a HOA.
You really need to have a real estate attorney go over everything.
If anything, you're exposed more there than with the "guest" being injured.

Thanks I'll take a look at the link you provided on MA disability laws, it looks like however this would not be applicable since it states it applies to those aged 18-59, and this "guest" is older....

My assumption is that if the co-owner of the property passes her heirs will be required to put her unit up for sale or keep her unit. There are only two units, mine and hers since this was originally a single family converted into a condo prior to me purchasing. I had a real estate lawyer who handled everything when I bought the condo from the previous owner/general contractor, and there is also a lawyer we both hired who handled coordinating the condo association trust.

 

[kate117]

Does the ADA cover private apartments and homes?

The ADA does not cover strictly residential private apartments and homes. If, however, a place of public accommodation, such as a doctor's office or day care center, is located in a private residence, those portions of the residence used for that purpose are subject to the ADA's requirements. Similarly, the leasing office of an apartment building or apartment complex, as well as a model apartment or home used for sales purposes, is a place of public accommodation subject to the ADA's requirements.

I think MA is different. I found some additional information here that I'll have to read closer later:

(www)mass.gov/ago/consumer-resources/your-rights/civil-rights/disability-rights/fair-housing.html#state

It looks from a quick glance that any organization of unit owners in a condominium who rent to handicap people are indeed required to comply with the Massachusetts Fair Housing Act and basic access/accommodation laws for those who are disabled or handicap, but upon request from the handicap/disabled person? So, perhaps the onus would be on my condo neighbor, only if reasonable accommodation was requested, and if in fact she is renting, since I was not informed...

 

[army judge]

I think MA is different. I found some additional information here that I'll have to read closer later:

(www)mass.gov/ago/consumer-resources/your-rights/civil-rights/disability-rights/fair-housing.html#state

It looks from a quick glance that any organization of unit owners in a condominium who rent to handicap people are indeed required to comply with the Massachusetts Fair Housing Act and basic access/accommodation laws for those who are disabled or handicap, but upon request from the handicap/disabled person? So, perhaps the onus would be on my condo neighbor, only if reasonable accommodation was requested, and if in fact she is renting, since I was not informed...

I don't doubt you had a lawyer draft your HOA articles and by-laws.
The fact that the co-owner has acquired a tenant, or permanent house guest defeats the very purpose of those who desire the governance of a HOA.
It never hurts to have a fresh pair of eyes review things every now and again.
I wish you well, and please have a safe, happy, healthy holiday season and new year!