Disability, Access, & HOAs

Situation: After filing a fair housing complaint in September 2022, which was determined to lack 'sufficient evidence for probable cause,' by the Colorado Civil Rights Division (CCRD), my disabled spouse and I (as his family caregiver) were left alarmingly open to further abuse and retaliation by our homeowner's association members, board of directors, & management company, with no guard rails stopping them.

Background: My spouse of 20 yrs was diagnosed with relapsing remitting Multiple Sclerosis at age 30, he is now 63 yrs old. His disabilities may be "invisible," at first glance (i.e. he is not wheelchair bound) but the impairments are profound. The decline in health and function led to his early retirement from a promising medical career in 2010 at age 49. He and I had bought some inexpensive vacant land in a subdivision in rural Colorado in 2009 in anticipation of my own retirement, with a plan to develop the property and build a home. We ended up relocating earlier than planned in 2015, after the (then-vacant) house was burglarized. The new home location led to a long daily commute for me while also trying to attend to increasingly complicated and challenging caregiver tasks in a rural setting as my spouse's age and disease condition progressed. The commute included traversing an arroyo bed on the subdivision property, a flash flood zone, a significant problem every Monsoon season and in the heavy spring snowstorms. This too became increasingly burdensome, frequently keeping me from getting home to my caregiver duties on time or at all, but we managed. That is until the summer of 2022. That year, a new board of directors had assumed power in the HOA, and pleas and requests for help (gravel for the road inclines, clearing of the up to 18 inch mud in the arroyo), were going unanswered or were given vague, superficial responses with no resolution or attempt to actually address the concern. Then came a series of Monsoon floods, one after another that July. It dawned on us that help was not forthcoming, and what had previously been provided (routine clearing of the dangerous and at times impassable flood zone, as well as regularly needed road service & maintenance), was not being provided. With few if any other option, we decided to file a request for a reasonable accommodation, to have the flood zone cleared emergently and timely, along with other needed road work to keep the dirt road safe. We submitted a request to the then-board of directors and were greeted with an alarming response: The Association was not responsible for clearing the flood zone of the mud! Nor were we going to be provided with any gravel or road base, even though it was well-documented that this was needed for safe travel. After three weeks of stressfully traversing the mud-filled arroyo, I became stuck on my way home from work. Only then did the board president reach out to tell us that they had been "given permission" to clear the flooded arroyo. To make a very long, very stressful story short, the entire behavior of the directors that summer led to our filing a fair housing complaint, then to the Association going back and forth about providing housing (i.e. road) services to us, in a very arbitrary and capricious manner. The Colorado Civil Rights Division found that we 'lacked sufficient evidence' for probable cause in our case, even though the board and management company proceeded to retaliate after we filed our complaint, and even though one association member, a former board president, was allowed to rail against us at the 2023 annual association meeting about our having filed a complaint, "Can they just file as many complaints as they want?" and demanding to be sent the full complaint file, which included health information about the disability and medical condition, and which under the Colorado Common Interest Ownership Act (CCIOA) must be withheld from being 'published' to the membership. As far as we know, this information was distributed despite the directors denying this when called out about it. The directors also assured others in attendance who were requesting this information that it would be shared. During this time, not one board member nor management company employee called this behavior out, although we understand this too could be considered retaliatory, contributing to a hostile housing environment. We chose not to pursue our claim in federal court because the entire debacle had drained us: financially, emotionally, psychologically, and physically.

Assessment: The current Colorado Commission for Civil Rights Division Fair Housing process is dangerously broken. Our case did not involve being deprived of an emotional support animal, and while this is a very important concern and has apparently become the "pet" issue in fair housing cases in the past few years (no pun intended), our case did involve safety, access, caregiver's ability to provide care, and lack of access to equitable housing goods and services. The case was strong, and yet we "lacked sufficient evidence," most likely because the HOA had a lawyer representing them and we did not. The board even changed their story from the initial response to the investigatory phase, contradicting themselves in very concerning ways which revealed the concern that their behavior was in fact discriminatory. Yet these contradictions did not raise a red flag with the CCRD director Aubrey Elenis, when highlighted in our appeal.

Recommendation: When people with disabilities and their caregivers take the time and energy (not to mention the risk) of filing a fair housing complaint, retaliation is real---and if no remedy is forthcoming, (except to spend a lot of money, along with more energy and time that is already depleted to file in federal court), the complainants are put at great risk: For further safety risks, emotional harm, harassment, and discriminatory treatment that further depletes limited internal and financial resources-- and the treatment is way worse than before the complaint. In our case the CCRD did not mandate mediation at the beginning of the process, which according to my review of the statute governing their powers, they were supposed to do. We therefore recommend that the Colorado Civil Rights Division revise its processes and at the very least re- institute mandatory mediation for EVERY complaint that involves a disability/reasonable accommodation, if it is deemed to meet the criteria to move ahead as a complaint, which ours did. If complainants lack legal representation but the landlord, association etc. has legal council, this should be provided to level the playing field. To fall down on these duties did a great disservice to us, and will continue to undermine the housing rights of disabled residents of Colorado and the caregivers who care for them until appropriate remedies are provided.