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By: Jake Loken & Bill Buechner
In a case citing The Rolling Stones, Henry Thoreau, and Abraham Lincoln, and listing the ingredients needed to make lemonade, the Third Circuit rejected an elderly woman’s disability discrimination claim under the Fair Housing Act.
In Vorchheimer v. Philadelphian Owners Association, 903 F.3d 100 (3d Cir. 2018), Carol Vorchheimer, an elderly woman, wanted to leave her rolling walker in her condo building’s lobby. Vorchheimer needed the walker to get around her condo and the building, but did not need it when going from the lobby to her car. Vorchheimer wanted to leave the walker in the lobby when she left to go to her car, but was provided four alternatives by the property manager for storing her walker instead of leaving the walker out in the lobby. The alternatives, however, did not satisfy Vorchheimer’s desire to simply leave the walker in the lobby.
After a year of continually leaving the walker in the lobby, without using any of the alternative options, and having staff move the walker into storage, Vorchheimer filed a lawsuit against the owner’s association, the association’s president at the time, and the property manager. The lawsuit alleged the defendants violated the Fair Housing Act, specifically, 42 U.S.C. 3604(f)(3)(B), by discriminating against Vorchheimer in refusing to allow her to leave the walker out in the lobby. Freeman Mathis & Gary, LLP attorney Christopher Curci argued on behalf of the defendants at oral argument before the Third Circuit.
The Court examined section 3605(f)(3)(B), which states: “Discrimination includes  a refusal to make  reasonable accommodations in rules, policies, practices, or services,  when such accommodations may be [a] necessary to afford such person [b] equal opportunity to use and enjoy a dwelling[.]” 903 F.3d at 105. The Court focused in on what is meant by “necessary” in this section.
Typically, a suit alleging discrimination under this section focuses on the “reasonable accommodation” factor. In Vorchheimer, the court focused on the “necessary” factor, and held that what is “necessary” is a question of law to be determined by the court, along with holding the “necessity element requires that an accommodation be essential, not just preferable.” 903 F.3d at 107. The Court further held that a particular tenant’s needs must first be identified, then after doing so, a court “can gauge what is necessary to afford that tenant equal hosing opportunity.” Id. at 108.
In determining what a tenant’s needs are, the Court thoroughly discussed what the word “necessary” means, and then examined doctors’ letters detailing Vorchheimer’s disabilities and medical needs, which were exhibits to her complaint. The Court determined that Vorchheimer’s needs were “use of a rolling walker” and minimal “period[s] of unsupported standing.”
Next, the Court turned to whether the alternatives proposed by the property manager satisfied these needs. The Court found that leaving the walker out in the lobby was Vorchheimer’s want, and not a need, and that the four alternatives posed by the manager satisfied Vorchheimer’s needs of minimal unsupported standing and use of the walker when moving around the building.
For HOAs, this holding means that if a HOA offers reasonable alternatives that meet a tenant’s needs, even though they may not be the tenant’s preferred accommodations, then the existence of these alternatives will make the tenant’s preferred accommodation not “necessary.” The Sixth, Seventh, Tenth, and Eleventh Circuits have all likewise held that a plaintiff is not entitled to his or her preferred accommodation if it is not essential to having equal housing opportunities.
After Vorchheimer, the Third Circuit makes it clear that the term “necessary” as used in the Fair Housing Act does not include wants, and helps make The Rolling Stones lyrics ring truer than ever, as “[y]ou can’t always get what you want, but if you try sometime you find, you get what you need.”
If you have any questions or would like more information, please contact Jake Loken at [email protected] or Bill Buechner at [email protected].