Does My HOA Discriminate Against People with Disabilities?

Dear Readers,
Below is a letter that I received from our property manager, followed by my response. You’re invited to post your comments after that, here on PATCH.com. Residents of HOAs may also share their thoughts about this HOA policy at a monthly board meeting, with their elected representatives, and at most any place and time.
Be well, -- Steve Lapham, resident of Quail Valley, Montgomery County, MD

The Management Group Associates, Inc.
April 29, 2021 *** VIA CERTIFIED MAIL

Mr. Steven Lapham
18737 Purple Martin Lane, Gaithersburg, MD. 20879

Dear Mr. Lapham:
I am writing on behalf of the Quail Valley Homeowners Association in response to concerns that have been received by my office. On several occasions, you have stated that you are representing the disabled homeowners and residents of Quail Valley Homeowners Association. However, individuals who are classified as disabled reported that they have not been included or invited to participate in your activities.
Quail Valley Homeowners Association is committed to complying with anti-discrimination laws including the Federal Fair Housing Act (“FHA”). The FHA prohibits discrimination on the basis of race, color, religion, sex, national origin, family status and disability. We request that you cease all actions that may be viewed as discriminatory against People in any protected class. Should you wish to continue to organize activities that purport to represent the needs of disabled individuals, please ensure that you do so in a non-discriminatory manner.
Thank you for your attention to this matter.
Sincerely,
Ruchita Patel, Agent for Quail Valley Homeowners Association
PR/mlb
QV – II16, HO Cc: Ruth Katz, Esq.
G:\QA\A. HOA FILES\18737 Purple Martin Lane\HO-18737PML-Discrimination-042921.doc
Please note that TMGA may be deemed a debt collector. Any information obtained from communication with our office may be used for that purpose.
2440 Century Boulevard * Suite 100 * Germantown, Maryland 20874
E-Mail: tmgainc@tmgainc.com / www.tmgainc.com
Member of Community Associations Institute

**** Mr. Lapham Replies ****

Dear Ms. Patel, Property Manager for QV HOA,

Thank you for attending to the topic of the Federal Fair Housing Act (FHA) as it applies to our Quail Valley HOA policies and practices, here in Montgomery County, Maryland. I do not pretend to be an attorney representing any person or group. Rather, I’m criticizing a government policy, the HOA’s policy. That’s a Constitutional Right of every American.
Let’s pause to remember that the FHA, the Americans with Disabilities Act (ADA), Title IX (which gives women the right to equal access in education), and other good laws arose out of the Civil Rights Movement, led by African Americans in the 1950s and 60s. I work with teachers of civics and history, so I like to pause, on occasion, to acknowledge the giants on whose shoulders we all ride. We benefit from their sacrifices. (Note 1)
I’m glad we're having this conversation, which can have a positive outcome that benefits the common good, as well as benefitting each individual. We need the good-citizenship participation of everyone—professionals, residents, and HOA board members--to make that happen.

Thus, let’s turn to the heart of the matter. Some residents suffer under a policy that is apparently unique to HOA neighborhoods managed by TMGA, Inc., a policy enabling your agent to seize people’s trash receptacles—to make residents’ trash cans “suddenly disappear.” QV HOA (and TMGA, Inc., which manages some 48 communities in Montgomery County) should cease and desist this harmful practice immediately because it …

1) DISCRIMINATES AGAINST PEOPLE WITH DISABILITIES. Residents without any physical disability can arrange to retrieve their trash can at the community barn and walk it home, or haul it away in their RV or truck. But residents who might have a physical disability (one that prevents their going to the barn, retrieving their trash can, and then hauling it home) must pay the HOA $50.00 or more to have their own property returned to them. It’s undeniable that this policy, on the face of it, discriminates against residents with a physical disability. It’s an obvious violation of the FHA. If you believe that this policy is somehow not in violation of the FHA, then please explain that reasoning to the community. (Note 2)

2) ENDANGERS PUBLIC HEALTH, AND COUNTERMANDS THE LAW. With their trash cans missing, residents are compelled to place food waste in plastic bags on the ground, for trash pickup, which occurs late in the afternoon on Mondays and Thursdays. All day long, the waste attracts and feeds crows, squirrels, racoons, and rodents. For several thousand years of human history, placing food waste on the ground has been known to be a health hazard to humans. Today, in many communities in Montgomery County, residents and businesses can be fined for placing food waste on the ground. It’s a hazard to human beings both with and without disabilities, and especially to children who play outdoors in our neighborhoods. Montgomery County law states: “garbage must be placed in a solid waste receptacle;” which means not in a plastic bag. Sec. 48-11. (a) (2) (ii)

3) BURDENS RESIDENTS WITH EXTRA MONITARY COSTS. The QV HOA spends about $4,000 per year on toxic chemical rat control. It would be more cost efficient, and safer for humans and wildlife, if the HOA would simply stop feeding the rats and crows as a result of its policy of removing trash receptacles. I see that you have sent me this message by Certified Mail, and cc’d an attorney. What is this communication, this ongoing dialog here, costing the residents of Quail Valley, as you “defend” this absurd and harmful policy aimed against the residents?

4) LOWERS HOUSE VALUES ON THE MARKET. The unsightly mess made by crows and rats picking at garbage bags on the ground all day long in the sun, twice a week, makes the neighborhood look horrible--especially in the winter and on the hottest days of summer. It reduces the resale value of any property in the neighborhood. Anyone driving into the neighborhood on a Monday or Thursday in the summer notices the problem immediately. There are dozens of photos.

5) CORRODES RESIDENT-HOA RELATIONS. To what extent is the HOA willing to go in defending its (imagined) “right” to endanger the health and welfare of its own residents? The situation resembles an absurdist short story by Kafka. Residents are confused and demoralized by HOA and TMGA actions and obfuscations. In the incident in winter of 2020, it appears that the HOA failed to provide notice (informative cards in doors, perhaps) to the residents on Pintail Lane, where the HOA seized a trash can. A former HOA board member living on that court was puzzled. What had happened? Who was this guy who just drove up, took away a trash can, and left no notices, during a covid epidemic? Residents banded together to try to figure out who the “thief” was. But it’s not just one incident of one missing trash can. Twice every week, those of us who care about health, and how the neighborhood looks, deal with a mess of trash on the ground. It’s oppressive.

6) IGNORES EASY AND EFFECTIVE ALTERNATIVES. There are practical approaches to this problem (i.e., someone forgot to put away their trash can), solutions that are not new in the field of property management. As I informed the HOA and to TMGA many months ago, placing a big, colorful, sticky label on an errant trash receptacle often gets the owner’s attention. The County does this. The label could say, “Please return this can to your back yard immediately after trash pickup.” If there is a house number clearly marked on the trash can, then place the can in front of the appropriate front door. If there is no house number on it, inform us, and our volunteer team of 50 QV families will gently inquire as to whom it belongs. We have supporters on every court. We are doing the work that the HOA ought to do. The policy of making the trash can disappear educates nobody and worsens every aspect of the initial problem. It is literally an “idiotic” (endlessly self-referencing) policy: you enforce it because you “have the right” to enforce it. Or so you believe. Consider a more compassionate alternative: Our monthly HOA assessment, for townhomes, is $88.25. An effective trash-management policy, as seen in the City of Rockville and many other Montgomery County communities, would be to give each resident a sturdy, $88 trash can with wheels, with the house number marked on it. At the same time, conduct a campaign to educate residents about its proper use. Employ all forms of media. Instruct every resident, and every new arrival, in their own language. After that proper education and preparation, then the HOA could require that residents never place food trash in a bag on the ground. That would be a reasonable policy.

7) IGNORES PROFESSIONAL STANDARDS. All across America, the profession of property management has a huge challenge: communicating with, collaborating with, and educating the residents. The challenges are many: there are language barriers, economic distress, a proliferation of media platforms, and a range of residents’ knowledge and abilities. Not to mention the stresses of the covid epidemic. The current HOA policy of removing trash cans would seem to be an example of an HOA and its property management following “worst practices” in the profession. (Note 3) It’s very strange. It corrodes trust and confuses communication. It abets breaking of the law. Instead, HOAs ought to be busy “developing and conducting community harmony and spirit-enhancing programs and including residents” in policy making—not paying lawyers to enable property management corporations to defend policies and practices that harm residents. (Note 4).

8) IS UNETHICAL. Finally, in its founding document, the Quail Valley HOA is charged with promoting “the health, safety, and welfare of the residents.” The policy of seizing trash cans clearly violates that obligation. It corrodes the trust that the HOA ought to be nurturing. It endangers public health, and countermands county public health law, and federal Fair Housing law.

I hope, Ms. Patel, as a property manager for a corporation (TMGA, Inc.) overseeing some 48 neighborhoods, that you would not advise HOAs anywhere to seize residents’ trash receptacles at any time. It’s bad practice.

But that is just a beginning. Are we interested in social justice and building strong and safe communities in America? QV HOA can take immediate steps to apologize to all QV community members, and find ways to make amends. As a first step, the QV HOA and TMGA could strive to undo a bit of the injury they have done by returning the 20-or-so trash cans (sitting in the dark in the community barn) to their owners. Surely, you kept a record of where and when your agent seized each can, so that should not be difficult. Knock on a few doors. In addition, residents should be closely involved in any process of making amends, as they are the primary victims of this abusive policy. Making amends and true restitution cannot happen without close collaboration. It’s not a "policy" that you invent from your desk. There is more to it than that.

A sampling of the lived experiences of QV HOA residents is revealed at PATCH.com and on YouTube. (Note 5) These vignettes shed light on some of the harm that QV HOA and TMGA are doing by upholding, and now defending, abusive policies and practices.

Finally, please see the two remarks (below) by writers in support of my response here. These people have personal perspectives regarding this topic. I look forward to continuing this conversation and widening the circle of people discussing these matters as we all strive for the common good.

Sincerely, Steven Sellers Lapham

Notes

• (1) We all have much work to do in the new century. “HOA communities tend to be racially exclusive, and HOAs are more concentrated where local governments [are weak and] provide fewer public services, ceding more control to private homeowners associations.” https://independentamericancommunities.com/2019/06/10/hoa-study-shows-link-between-prejudice-and-weak-local-government/
• (2) On May 5, 2021, the Commission on Common Ownership Communities declined to adjudicate my complaint (Case No. 2021-044) against the QV HOA in this matter. The CCOC’s discussion at the public meeting did not include the word “disability,” or “FHA,” or “ADA”—much less address the question I raised. It’s as if disabled people are invisible in their eyes. Notice the absence of the word "disability" from the CCOC's summary of my complaint (the relevant passage):
  "1. Respondent improperly confiscates and destroys homeowners' trash receptacles;"
  "2. Respondent requires homeowners to pay a retrieval fee for the confiscated trash receptacles;"
  They missed my main point. Or perhaps the CCOC is hinting that this conflict ought to be resolved through litigation. The CCOC is feckless in this important matter. Their decision is puzzling. Last year, I submitted complaints to various county agencies, the OHR, DHHS, and OLTA … who told me to file a complaint with the CCOC. So I did, to no avail. It’s a game of musical chairs that does not serve the public. So I post this article here.

• (3) The nation-wide problem of abusive and predatory HOAs is chronicled at http://IndependentAmericanCommunities.com
• (4) Foundation for Community Association Research, “Community Harmony & Spirit,” https://foundation.caionline.org/wp-content/uploads/2017/06/bpharmony.pdf.
• (5) A YouTube video of a QV resident retrieving her own trash receptacle is at https://tinyurl.com/GetBackBarn, and her narrative is among the 17 at https://patch.com/maryland/gaithersburg/living-cuckoo-court-nodx

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QUOTE #1. A HOMEOWNER'S STATEMENT IN FAVOR OF ENDING THE DISCRIMINATORY POLICY:
If my spouse was called to be out of state for work, and the HOA had seized our garbage can, I could not physically grab it from the community barn and lift it into our car or whatever. I would have to pay the $50 fine, or fee, or whatever it is. That is unfair. I hope this HOA practice will stop. This punishment is not an effective educational tool. People are just confused. --P.G., Grackle Way

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QUOTE #2. A HOMEOWNER'S STATEMENT IN FAVOR OF ENDING THE DISCRIMINATORY POLICY:
I worked in the health field for decades, and now I have ambulatory problems myself. If the HOA took my trash can, I could not retrieve it myself, lifting it into the trunk of the car and so forth, but I would not pay the HOA give it back to me either. I would go to Home Depot and buy a new can. Who do these people think they are? We do not need to be punished. We do not need to be humiliated by our own HOA. It’s ridiculous what they demand of us. I actually am one of these people who think we need a strong local government. We need our taxes to pay for public services, good schools and teachers, for clean drinking water, hospitals, and good roads. We need help, the government to step in and intervene, for example if a neighbor is committing a crime or letting their house fall apart. But the way the HOA behaves, it makes no sense. It does not reflect what the residents want. The board does not work with us. It does not reach out to us. I have not experienced that happening. --J.M., Hummingbird Terrace

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