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MCL May/June 2014 - Accommodation or Modification Under the FHA
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Accommodation or Modification Under the FHA

What do they mean and how will you know how to answer a request? (Part 1 of 2)

By Matt Drewes, Thomsen & Nybeck, P.A. Attorneys

Matt DrewesA commonly misunderstood, or at least mis-applied, part of the law relating to community associations involves whether and how they should address the needs of disabled members. The answers are governed at least in part under Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act in 1988 (collectively known as the Fair Housing Act, or “FHA”). The U.S. Department of Housing and Urban Development (HUD) has passed regulations implementing the FHA, and pursues violations in conjunction with the U.S. Department of Justice.

The purpose of the FHA, and the applicable regulations, is to prohibit discrimination in the sale, rental, or other provision of housing-related services, including due to the disability of the renter, buyer, or occupant of the dwelling, or any person associated with any of them. The FHA also covers race, color, religion, sex, national origin, and familial status — and there are state and other federal authorities that can overlap — but this article (along with part 2, coming in a future issue of Minnesota Community Living) will focus primarily on one of the areas of greatest confusion and concern: When and how an association must make reasonable accommodations or permit reasonable modifications. This first installment will begin with a discussion of what reasonable accommodations and modifications are, and will provide the initial steps for examining the questions of whether and how to address a disabled person’s needs. The second installment of this article will get into slightly more detail concerning requests under the FHA.

A “reasonable accommodation” is a required change in rules, policies, practices, or services, when such accommodation may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling. Common examples include permitting an owner to use a designated parking space or allowing an owner to have a service animal in spite of pet restrictions. Allowing a “reasonable modification” is to permit a person with a disability, at his or her own expense, to make reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person an opportunity to fully use and enjoy the dwelling. Examples of reasonable modifications include installing a wheelchair-accessible ramp or re-configuring an entrance or access to the person’s unit or other facility.

A disability under the FHA is (a) a physical or mental impairment that substantially limits one or more major life activities; (b) an established record of the impairment; or (c) a case where a person is “regarded” as having such impairment. Federal regulations interpret “major life activities” as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” Interpreted in combination with one another, this means a “housing provider” violates the FHA when (1) the claimant suffers from a “disability;” (2) the housing provider knew, or reasonably should have known, of the disability; (3) accommodation or modification may be necessary to afford the person an equal opportunity to use and enjoy the dwelling; and (4) the housing provider refused to make the accommodation or allow the modification. An HOA, and its management company, are considered “housing providers.”

This can be an intimidating topic for a few reasons. Discrimination is an ugly word, yet FHA violations do not require ugly intent. The above factors boil down to whether a practice or a decision has a discriminatory effect against a disabled person’s use and enjoyment of a dwelling. Each case is different and determinations are fact-specific, so predicting an outcome in a given situation can be hard. And, while courts may reach certain decisions, an agency dealing with a resident complaint may have a different interpretation. Unfortunately, even though both HUD and the Department of Justice are often willing to negotiate a resolution to a complaint, there usually is a price tag attached to that resolution, and neither is equipped to act as an advisory service or assist in resolution before that complaint has been filed. Thus, this article is not advice or specific guidance on how to handle a particular request, but rather is only a primer on how to approach these issues. You should get advice relating to your own facts before acting.

1. Establish a reasonable accommodation/modification request policy.

In a recent conversation with the local field office for HUD, it was recommended that HOAs establish a policy for handling requests if they don’t already have one. The goal should be to provide guidance for those making requests, the kind of information typically needed to make a decision, and the timing for responses or the provision of supplemental information. This should be made available to prospective purchasers as well as existing occupants.

Having such a policy is not essential to avoiding liability for violations of the FHA, nor is it a shield against a finding of liability. But it is something you can do immediately to show that you are interested in furthering the goals of the FHA, that you’re helping disabled persons feel welcome rather than unwelcome; that you’re documenting your efforts to comply with the FHA; and you’re providing a timeline for the process. This last point is useful, because even excessive delay in responding to a request may be treated as a failure to provide a reasonable accommodation or modification.

Although it is helpful to have, your policy can’t be too rigid. For example, your policy may provide that the HOA’s obligation to respond is not triggered until there has been an actual request for an accommodation or modification. However, you cannot mandate the particular form a request must take. You may not require that it be in writing or that it say it’s made under the FHA. Courts have held the existence of a request is a highly fact-specific inquiry, requiring only that a reasonable person would understand a request has been made for an exception, change, or adjustment to a rule, policy, practice, or service because of a disability.

2. Determine whether the request is due to a disability.

Assuming an actual request has been made, it is permissible to verify the request is due to a disability. But again, the information that may be required for this determination varies. For example, if it’s a condition about which the board or management already was aware, or should have been aware, it’s going to be less reasonable to request more information to support the condition. However, where the condition or its impact on one or more major life functions is not apparent, it is permissible to request a letter from a treating physician, or even that the doctor or other healthcare provider completes a form, which identifies the condition and indicates whether it’s temporary or permanent, along with other appropriate information discussed in this article.

At minimum, where the nature of the communication or the possible request is unclear, an HOA should seek more information from the requesting party. Don’t just unthinkingly refer an owner to your architectural guidelines or your architectural review committee. Think about why the person is asking, and consider whether you need more information.

At the same time, you should not ask for information that is not necessary to understand whether the requested measure is necessary to provide an equal opportunity for the use and enjoyment of the dwelling. While you may ask about the condition necessitating an accommodation or modification, HUD does not wish for parties to inquire about the severity or type of disability (sometimes a difficult distinction to draw). Further, HOAs generally will not be entitled to view the person’s medical “file” or records. Also, the information you do receive must be kept confidential, and be shared only those who must access the information to make the decision, or to advise the HOA in connection with its decision.

3. Determine whether there is a clear connection between the disability and the requested accommodation or modification.

An HOA is entitled to ensure that any proposed change or modification is going to have some direct relationship to the opportunity to use and enjoy the dwelling. Where the connection between the disability and the request is unclear, an HOA may ask for information to better understand it. For example, where there is evidence an owner has previously asked for permission to keep a pet, then later changed his story to suggest the request is for a service animal due to a disability, it is appropriate to seek objective information about the person’s condition, how the requested accommodation (permission to keep a dog) would help that condition, and whether the condition is anticipated to be short or long term.

In the conclusion of this article (part 2), there will be some insight into how you can determine whether a given request is “reasonable,” along with some common-sense advice on how you might steer clear of a claim for violation of the FHA. Be sure to check for that conclusion in the July/August issue of Minnesota Community Living.

Note: The information in this article is provided solely as general information and not as legal advice. Your receipt, and even your use of this information, does not establish an attorney-client relationship. Readers are urged to speak with a qualified attorney focusing on community association law when making decisions regarding a specific legal issue.

Published by Community Associations Institute — Minnesota Chapter, copyright 2013. All articles and paid advertising represent the opinions of authors and advertisers and not necessarily the opinion of either Minnesota Community Living or CAI–Minnesota Chapter. The information contained within should not be construed as a recommendation for any course of action regarding financial, legal, accounting, or other professional services by the CAI–Minnesota Chapter, or by Minnesota Community Living, or its authors. Articles, letters to the editor, and advertising may be sent to Monte Abeler at, or at CAI–Minnesota Chapter, 1000 Westgate Dr., Suite 252, St. Paul, MN 55114.

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