The Fair Housing Act (“FHA”) prohibits a community association from discriminating against a person in providing services or facilities in connection with a sale or rental because of disability. Prohibited discrimination includes (1) a refusal to make reasonable accommodations; and (2) a refusal to permit reasonable modifications. In a community association context, a common example of a request for a reasonable accommodation is a request to keep an emotional support animal despite the fact that the association has a no-pet policy. A common example of a request for a reasonable modification is a request to install a wheelchair ramp, which may otherwise violate an architectural control restriction.
If a resident within your community makes a request for a reasonable accommodation or reasonable modification, what should you do?
The first step is to identify any request that may fall under the FHA. It is important to note that requests can be made verbally or in writing, and the applicant making the request is not required to use the words “reasonable accommodation” or “reasonable modification”. As such, it is important for board members and community managers to familiarize themselves with the FHA so that they can be aware when Fair Housing laws may be triggered (which is not always obvious).
If you identify a request that you feel may fall under the FHA, the second step is to immediately contact your community association lawyer. Due to the nuances of Fair Housing laws, having competent legal advice is vital. Once a request for a reasonable accommodation/modification is submitted, the community association has an obligation to engage in an “interactive process.”
Qualification for a reasonable accommodation/modification is a three-pronged test:
- Does the applicant have a verifiable disability?
- Does the request qualify as a Reasonable Accommodation or Reasonable Modification?
- Is there a nexus between the disability and the Reasonable Accommodation or Reasonable Modification?
Engaging in the interactive process includes promptly opening a dialogue with the applicant to determine whether the three-pronged test has been met. In the circumstance that the applicant has satisfied (1) above and shown a verifiable disability, but the association does not feel that the applicant has satisfied (2) above for any reason, the interactive process also requires that the association and applicant discuss possible alternative accommodations or modifications.
- Take any request that could implicate the FHA very seriously
- Contact your community association lawyer ASAP
- Respond promptly to the applicant and engage in the interactive process
- Ignore or unreasonably delay responding to any request that could implicate the FHA
- Flatly deny the request, without engaging in the interactive process
- Act in any manner or fashion that could be deemed hostile or discriminatory against the applicant submitting the request
While the above-described process may seem onerous, and the reality that certain applicants will abuse the law may seem frustrating, it is important to keep in mind that the intent of the Fair Housing laws is to ensure that disabled individuals avoid discrimination and are afforded equal opportunity to use and enjoy the dwelling.