By ERIC A. HOWALD
Of the Keizertimes
A family suing the McNary Estates Homeowners Association (HOA) for discrimination against their developmentally disabled daughter settled the suit for $300,000 last week.
The amount will be paid by the HOA’s insurer. While the settlement did not require an admission of fault or responsibility, the family’s attorney, Dennis Steinman, said making the final amount public was a priority for the family.
“What was important to the Kuhns was that everybody should know what is going on with this particular HOA – and HOAs, in general – and the impact having violated the law can have,” Steinman said.
The lawsuit stemmed from incidents that occurred in 2015. Gary and Renee Kuhn, along with their daughter Khrizma, purchased a RV to accommodate a host of maladies Khrizma suffers from and that require her to have access to a bathroom even on short trips.
The family began parking the RV in their driveway and ran afoul of the HOA’s covenants, conditions and restrictions (CC&R). The family requested waivers given the medical necessity, but they were denied on several occasions. The Kuhns also ran into hostility and passive-aggressive monitoring by their neighbors according to the original complaint.
The Kuhns sold their home in the fall of 2015 and filed suit against the McNary Estates HOA, the Fountains at McNary Estates and the Phase 8 HOA as well as two individuals. The Fountains at McNary and Phase 8 HOA settled with the Kuhns in mediation. All the Fountains and Phase 8 board members were required to attend a fair housing training, review and adopt of reasonable accommodation procedures and pay monetary damages of $25,000.
In January, U.S. District Judge Ann Aiken issued a summary judgment finding that the McNary Estates HOA had discriminated against Khrizma in their refusal to accommodate the RV.
Steinman said the family did all the right things in their attempt to seek a waiver and that resulted in a strong case.
“(The Kuhns) brought in experts through the Fair Housing Council of Oregon to advocate for them and provide significant and detailed support as to why this should have been permitted,” Steinman said.
While that was one reason he decided to take on the case, it was not the only one.
“There wasn’t really well-established law regarding the HOAs’ obligations to make reasonable accommodations for someone with disabilities. We wanted to make sure that it was squarely addressed, and we did,” Steinman said.
He added that it was not the first time the McNary Estates HOA was found in violation of fair housing standards.
In the 2011, the McNary Estates HOA was determined to have violated the Fair Housing Act by not allowing a privacy fence to prevent an 11-year-old developmentally disabled boy from wandering off the property of his mother’s boyfriend.
“They didn’t get it,” Steinman said.
While some lawsuits against HOAs have resulted in larger settlements regarding similar issues, Steinman said the Kuhn settlement was one of the most significant in Oregon, and nationwide, for a single HOA and plaintiff.
“This really stands out, and it should send a message to HOAs that when they violate the laws that the penalty is going to be felt,” Steinman said.
In addition to the monetary settlement, HOA officials have to provide the Fair Housing Council of Oregon’s documentation on how to get a reasonable accommodation as part of their CC&R’s. The rules also had to be posted on the HOA website, sent out to existing homeowners, and will be given to new purchasers.
The decision also has larger-scale implication. Going forward, the decision in the case can be used as precedent for other cases when HOAs and disabled residents’ needs come into conflict.
“The crux of this case is whether the choice of a disabled person about how they want to deal with their disability is greater than the voice of the HOA about how they want their community to be lived in. In the strongest possible terms I’ve seen, this case lays out that CC&Rs don’t trump what the law says,” Steinman said.