For all the nuances and open questions in condominium law, one principal is generally consistent: units are owned individually and common areas are owned jointly by all unit owners as tenants in common, and, for this reason, unit owners typically pay for work performed on their units and the condominium association, through assessments to all unit owners, typically pays for work performed on the common areas. Some situations might call for a deviation from the norm, such as when a reasonable modification to a common area is needed or requested by a member of the community. Is the condominium association responsible for the cost? When a person with disabilities owns a unit in a condominium and requests a reasonable modification to a common area, the biggest question is often, “who pays?”

The party responsible for the costs of reasonable modifications to a condominium’s common areas, to afford persons with disabilities full enjoyment of the premises, is the unit owner requesting the modification, not the association.

Under both state and federal law, housing providers, including condominiums, cannot refuse to permit reasonable modifications (structural or physical changes to the premises) for persons with disabilities if that modification is necessary to them an equal opportunity to use and enjoy their unit and the common use areas unless the proposed modification would create a substantial burden (by cost, disruption to the property, or if would violate a building code). Massachusetts anti-discrimination law also includes a provision that, for certain types of housing, the owner of the property is responsible for the cost of the modification. Where an owner with disabilities requests a modification in her individual unit, it makes sense that she would be the one to bear the cost even if the association is the one to construct or install the change. Where the requested accommodation requires a modification to the common areas, however, does the requesting unit owner have to foot the bill, or should the cost be assessed to all owners, just as many other improvements and repairs to common areas?

In a recent case, Geezil v. White Cliffs Condominium Four Association, 105 Mass. App. Ct. 103 (2024), the Massachusetts Appeals Court issued a decision answering this very question – whether a condominium association is responsible for the expense of accommodating an individual unit owner’s disability by modifying a patio exclusively dedicated to her unit but considered common area under the master deed? In White Cliff the court held that, based on the facts in the case, the answer is “no,” and the association was not required to pay for the requested modification.

The plaintiff in the White Cliffs case was the personal representative of the owner of unit 214 at the White Cliffs Four Condominium, who passed away during the pendency of the case. The owner of unit 214 had requested modifications to accommodate access to the split-level patio adjacent to her unit. The decks and patios at the White Cliff Four Condominium are common areas under the master deed, but individual units have easements for the exclusive use of any directly adjacent patio or deck. The condominium association agreed to install the requested modification to the patio, at the owner’s expense. The unit owner brought a complaint for unlawful discrimination and retaliation, arguing that Massachusetts anti-discrimination law required the association to be the one to pay.

Pursuant to G.L. c. 151B, § 4(7A)(1), the refusal to permit or make reasonable modifications of property occupied by a person with disabilities, at the expense of that person, amounts to disability discrimination. In certain circumstances, however, “the owner or other person having the right of ownership” must bear the expense of the modification. The housing types included in this cost-shifting provision are publicly assisted housing, multiple dwelling housing of ten or more units, and contiguously located housing of ten or more units. The difference between these two provisions is, of course, the party responsible for the cost of the modification: the person with disabilities, on the one hand, or the owner, on the other hand. In the specific case presented, where the person with disabilities is the owner of an individual unit in a condominium, but the modification is to a common area, who is to be considered the “owner”?

In White Cliffs, the Appeals Court found that the cost-shifting provision did not apply for two reasons. First, the condominium is not one of the types of housing subject to the above-cited section of G.L. c. 151B because the building in which the owner’s unit is located is comprised of four units, although the plaintiff argued that it was “contiguously located housing consisting of ten or more units.” Second, the provision at issue shifts the cost of the modification onto the “owner” of the property, but the Appeals Court held that the association was not the “owner” of the condominium’s common areas. The association manages and regulates the condominium, but the unit owners own the common areas as tenants in common. Because the condominium association is not the “owner” of the patio adjacent to unit 214 within the meaning of this cost-shifting provision, the association did not commit unlawful discrimination by declining to pay for the modification. The party responsible for the costs of reasonable modifications to a condominium’s common areas, to afford persons with disabilities full enjoyment of the premises, is the unit owner requesting the modification, not the association.

It is important to note that the White Cliffs holds that it is not unlawful discrimination if the condominium association permits the modification (or makes the modification) at the owner’s expense. Condominium associations should not look to this case as a rule that they must require a unit owner with disabilities to undertake the entire expense for a reasonable modification to a common area, or even that they should. There may be instances where the entire condominium community, including owners without disabilities, will benefit from modifications and an association may consider if the expense should be incurred as a common expense. Ramps, elevators, and press-to-open doors are not only vital to ensure full enjoyment of the premises for those with disabilities these modifications may be used by older residents, parents with young children, and even just people carrying heavy groceries or moving boxes (and, thus, may have broad support/need in the community generally). There may be certain common area modifications that a condominium board wants to consider paying for and, more importantly, have control over.

In conclusion, the Appeals Court’s decision in White Cliffs provides valuable clarity to the question of who is responsible to pay for reasonable modifications to condominium common areas.