Most co-ops offer different types and sizes of units including 1 to 3 bedrooms with various floor plans and square footage combinations. As is often the case, members desire to move from one unit to another. There may be many different reasons for moving such as an increase in family size or a unit with a better view or access to green space or parking. But in some cases members will want to move from their unit to another unit for accessibility purposes or because they have a disability and another unit will better enable them to enjoy the privileges of cooperative living than their current unit.
In such cases the member often presents management or the cooperative Board with a written request to be placed on a waiting list. Virtually all cooperatives maintain waiting lists for this purpose and applicant names are routinely added to the bottom of the list. In many situations when a member decides to sell their unit they seek assistance from the cooperative that then refers the seller to the first name on the waiting list. If the parties can reach a mutually agreed upon sale price, then the unit is sold to the person at the top of the list. Though the seller doesn’t have to sell to any person on the list, the list provides a good starting point for individuals already interested in buying specific types of units.Disabled Unit Transfers: Moving to the Top of the Waiting List
Into this process comes a disabled member’s request to move because of his or her disability. It is common practice to add the disabled member to the end of the list because that is fair on a first-come first-served basis. This is particularly so when a member’s name could sit on a list for a number of years without any opportunity to purchase or exchange a unit.
Though it seems unfair, HUD has required cooperative housing providers that maintain a waiting list to advance the name of a disabled applicant or member seeking to transfer because of a disability, to the top of that list.
This means that the disabled applicant or member jumps to the top of the list only behind other disabled applicants or members who have previously made the same request. Nondisabled members or applicants whose names already appear on the list are pushed down the list to make room for the disabled members at the top.
In most cases a member or an applicant for membership who has a disability warranting a specific type of unit such as a unit with no steps or most directly accessible to handicap parking or other specific accessibility feature will qualify to move the member or applicant to the top of the waiting list.What is Section 504?
HUD has maintained that the Rehabilitation Act of 1973 requires this result. The Rehabilitation Act of 1973 is a federal law, codified at 29 U.S.C. § 794, that prohibits discrimination on the basis of disability in federally-assisted programs or activities. Specifically, Section 504 prohibits discrimination on the basis of disability in any program or activity that receives financial assistance from any federal agency, including HUD as well as in programs conducted by federal agencies including HUD. Persons with disabilities, persons associated with persons with disabilities, and other persons engaged in certain protected activities under the law are protected by section 504.
Note that the law applies to any program or activity that receives financial assistance from any federal agency including HUD. Section 504 regulations define “recipient” to include a HUD funded public housing agency or a HUD funded non-profit developer of low income housing. A Section 8 voucher program or activity also triggers coverage. However, a private landlord who accepts Section 8 tenant-based vouchers in payment for rent from a low-income individual is not a recipient of federal financial assistance merely by virtue of receipt of such payments.What Is The Cooperative Suppose To Do?
Thus, according to HUD, when a mobility accessible unit becomes available in the cooperative housing context, the cooperative should make at least the first disabled applicant or member’s name on the list available to the seller for the seller’s consideration. In a traditional landlord-tenant situation, the landlord would be required to offer the unit to the disabled applicant or tenant, but in the cooperative housing situation, the cooperative is not the owner of the unit. The cooperative’s interest is simply ensuring that the applicant or member is qualified or continues to be qualified to reside in the community. Nor is the seller obligated to sell to any particular person disabled or not. The seller is still free to bargain the best sale price for his or her unit.
HUD's Section 504 regulations at 24 C.F.R. § 8.27 require recipients to adopt suitable means to assure that information on available accessible units reaches otherwise qualified individuals with disabilities who need the features of those units. This means that the cooperative must at least provide the name of the disabled person on the list to the seller. If there is more than one disabled member interested in the unit, the cooperative must repeat this process until all disabled applicants or members have had the opportunity to bargain with the seller. If the seller still has not obtained the price he or she desires then the cooperative may offer the names of applicants without disabilities on the waiting list to the seller.
Cooperative boards and management should review their waiting list protocols and if they are recipients of federal funds; they should ensure that disabled applicants and members desiring to transfer to different units with accessibility features, location or related considerations are advanced to the head of the waiting list.
Attorney Kerry Lee Morgan is of counsel to the law firm Pentiuk, Couvreur & Kobiljak, P.C. and has extensive experience in matters related to federal discrimination law and has assisted cooperatives to resolve these contentious disputes. He previously served as an Attorney-Advisor with the United States Commission on Civil Rights in Washington, D.C.