Free parking for caregiver?

Rent it Right


Janet Portman
Inman News
Q: My elderly mother needs a caregiver twice a day to help her with dressing, bathing and food preparation, because her ability to walk is severely curtailed. Mother lives in an apartment complex that allocates one parking spot to each resident (mother has kept her car and parks it there so that her visiting children can use it to take her to doctor appointments).

The caregiver has to park on the street, sometimes more than a block away, which means that she bills my mother for the extra time it takes her to get to and from mother's unit.
Mother asked for an extra space, which is available, but management requires her to pay for it. As a person with a disability, isn't she entitled to a free parking space for the person whom she relies on for help with daily living activities? --Kelly P.

A: From your description of your mother's condition -- requiring help due to significant mobility problems -- it's clear that she qualifies legally as a person with a disability. That is, she is significantly impaired in one or more major life activities: namely, walking.

As a person with a disability, she could clearly ask management to make available a close-in parking spot for her personal use, because she could face injury or pain if she had to travel long distances from the house to the car. In other words, without a parking space close to the apartment, her use and enjoyment of the dwelling would be diminished.

Once a tenant can establish this direct link -- that the accommodation is necessary to address the problem -- then the question becomes whether it is reasonable to require management to provide the accommodation.
So, for example, if your mother were asking to bypass a wait list and be assigned a close-in spot immediately, a judge would consider the burden on the landlord of complying with this request. Most of the time, a situation like this is decided in the tenant's favor, because varying the normal parking policy in this way is not a big deal.
With this simple scenario as a backdrop, let's look at your mother's specific request. She's not asking for parking for herself; she's asking on behalf of a third party.

To prevail, your mother would have to argue that having to pay for the second parking spot for her helper would make it impossible for her to live comfortably in her rental; or, that the extra commute time she pays for as her helper walks to and from her car also makes it impossible for her to live there safely.

You can see that the neat, one-jump causal chain in our first scenario is missing here. Paying for the spot, or paying extra for the helper's walking time, doesn't necessarily prevent your mother from getting the care she needs. And for this reason, she might have a hard time convincing a judge that a free spot, or even an available spot, must be given to her caregiver.

One can imagine other situations in which the outcome might be different. Suppose, for example, that a husband and wife who both have disabilities and share a one-bedroom apartment ask for permission to have a live-in helper, in a state with an occupancy standard of two people per bedroom (that's the national guideline; some states are more generous).

Without a live-in, the couple will face many hours alone and will be unable to meet their basic needs.

Would it be reasonable to expect the landlord to adjust its policies, assuming building code space requirements would not be violated by the addition of one more occupant? Arguably yes, because of the direct link between the couple's ability to live safely in the rental and the accommodation sought.

And would it be reasonable to ask that no more rent be charged for this additional occupant? Now we're into the tricky waters posed by your question. Many judges will uphold the landlord's desire to charge for one more occupant, reasoning that this additional rent will not, by itself, defeat the couple's ability to live safely and comfortably in the rental.
Q: The street in front of my apartment building has become a popular spot for day laborers to hang out and wait for jobs. The place is quite messy and my tenants are upset. They don't like having to walk through the crowd, say they feel intimidated, and have asked me to do something about it or they'll move out. I'm also worried that if they are harmed, I'll be responsible. Any suggestions? --Arnold J.



A: The legal issues raised by the situation you describe are similar to the issues landlords face when the sidewalks in front of their buildings are taken over by drug gangs, prostitutes or other less savory types. Not that day laborers are in any way as fearsome and dangerous as some of these folks, by a long shot.

But the legal issue for the landlord is the same: To what extent are you responsible for dealing with a dangerous or even potentially dangerous situation taking place on public property directly adjacent to your building?

Put another way, if you do nothing and the situation continues, do tenants have a legal justification to break their leases without future liability for rent?

We know that if a landlord tolerates illegal behavior on his property, and fails to evict the criminals, the answer is simple: Tenants who are injured as a result can look to the landlord for damages, and those who are fed up get to move without responsibility for future rent.

But in your situation, the activity (putting aside for the moment whether it's criminal) is taking place on public space. You can hardly evict the laborers from the sidewalk, but you can take steps to mitigate the effect they are having on your tenants.

First, consider talking with your city attorney about the situation. Your city may have an "anti-loitering" law on the books that could address the situation, depending on how it's worded. It may even have a law that targets day laborers, prohibiting them from standing on streets and highways and soliciting work, or requiring them to wait only in specified areas.

Not that having such a law is a sure winner for you, however -- in the western U.S. alone, judges in several cases have struck down such laws as an infringement on free speech.

You might also consider a political approach to the problem of how unaffiliated people can look for work. Some cities have put aside land and even facilities for use as a sort of "day laborer hiring park or hall." These solutions are controversial, but they at least address the problem in a nonpunitive way. Your city government might be receptive to such a suggestion.

It would be wise to meet with your tenants, perhaps with a local policeman in attendance, to talk about the situation. Doing so will make it clear that you've heard their concerns, and the officer may have suggestions on how your tenants can safely interact (or not) with the laborers and minimize any chance of confrontation or problems.

If you have your meeting but get nowhere with an anti-loitering law, and there's no designated alternative area for laborers to congregate, you will be able to at least say that you did all that you could reasonably do to remedy the problem.

This is important: The law requires you to make a reasonable response to the situation, not a supernatural one. This means that if, for example, a tenant were accosted by one of the laborers, he'd have a hard time holding you partly responsible.

But whether a lease-breaking tenant could leave without responsibility for future rent is another matter. If a situation becomes intolerable, no matter how hard the landlord tries to fix it, tenants can leave. A graphic example is the current scourge of bedbug infestations.

Landlords are going to Herculean lengths to rid their buildings of the problem, but if they fail, their tenants can justifiably break their leases.

Again, the comparison is awkward, but the legal theory applies: Despite your efforts, if the gauntlet of workers remains as daunting as you describe, your tenants may be able to leave without responsibility for future rent.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.