All’s Fair

Fair HousingWhat community association boards and managers need to know about the federal Fair Housing Act.

Ajit Bhogaita, an Air Force veteran suffering from post-traumatic stress disorder, was prescribed an emotional support animal by his physician to help him cope with chronic anxiety and depression. The dog exceeded the 25-pound weight limit allowed by Altamonte Heights Condominium Association in Altamonte Springs, Fla., so the community sent Bhogaita a violation notice in May 2010 and demanded he remove the dog.

The physician responded with a note that explained the dog was necessary to help Bhogaita cope with the disability and function normally. The association then requested increasingly detailed information in three separate letters, asking about the nature of the impairment, how the impairment impacted a major life activity, how long treatment had been ongoing and more.

Eventually, Bhogaita sued Altamonte Heights for violation of the Fair Housing Act for failing to provide a reasonable accommodation. The court denied the association’s motion to dismiss the claim in December 2012 and found that by repeatedly requesting additional information from Bhogaita, Altamonte Heights effectively denied him a reasonable accommodation.

The case illustrates an increasingly common scenario community associations face: reasonable accommodation requests for emotional support animals. It’s also just one of many fair housing issues associations encounter today.

Associations can easily get caught up in accusations of discrimination, especially when the board and management aren’t familiar with the law. Violations of the federal Fair Housing Act can mean severe civil and criminal penalties, including fines and imprisonment, against the association and possibly even individual board members.

So, how can you keep out of trouble? Learn what an association can and can’t do under the federal Fair Housing Act and related state and local laws. And work closely with your attorney in every possible fair housing situation.

Fair History

The federal Fair Housing Act, adopted in 1968, and its subsequent amendments in 1974 and 1988 prohibit discrimination based on race, color, religion, national origin, gender, disability and familial status in the sale, rental and financing of dwellings and other housing-related transactions. It is illegal to direct abusive, foul, threatening or intimidating language or behavior toward tenants, residents or potential homebuyers because of their membership in one of the federally protected classes.

The law interprets disability as a mental or physical impairment that substantially limits one or more major life activities. Familial status includes the presence or expected presence of children under 18, pregnant women and individuals securing the custody of children under 18. Over-55, age-restricted communities are exempt from the familial status category.

Two types of discrimination are included under the Fair Housing Act: disparate treatment and disparate impact, which is also known as discriminatory effect. Disparate treatment involves treating someone differently because of his or her background. Disparate impact involves discrimination by a different effect, such as when a neutral policy or procedure has a disproportionately negative impact on a protected class.

Most discrimination complaints are brought under disparate treatment, but claims brought under disparate impact appear to be growing. In 2013, the U.S. Department of Housing and Urban Development issued a final rule that provides that if a practice has a discriminatory effect, liability can be established under the Fair Housing Act even if a facially neutral practice has no discriminatory intent.

This means that while an association may not intend to discriminate against a class or group of people through a policy or practice, it may still violate the Fair Housing Act if the policy has a disproportionally negative impact on a protected class. Frequently discussed examples include criminal background checks, rental restrictions, credit checks and restricting children from swimming or riding bicycles in a community.

Reasonable Accommodation

Under the Fair Housing Act, a reasonable accommodation must be provided to afford a person an equal opportunity to use and enjoy a residential dwelling and community association common areas, amenities and facilities. It means that associations may need to change, create an exception or adjust a rule, policy, practice or service.

An owner must request the accommodation and offer proof of a disability—unless it is readily apparent. There must be a reasonable relationship between the disability and the accommodation, and an association must grant the request unless it imposes an undue financial and administrative burden or fundamentally alters the nature of a policy, practice or service—determined on a case-by-case basis. Associations should be careful how they approach the request and response; making the request burdensome or delaying a response may lead to a discrimination claim.

However, if an owner fails to provide appropriate information, an association may deny the request. Generally, an owner must obtain documentation from a physician, psychiatrist, social worker or other mental health professional that the accommodation alleviates at least one identified symptom of a disability. The owner doesn’t need to disclose specific details of the disability or provide a detailed medical history.

During any reasonable accommodation request, associations need to consult with their attorneys and carefully review the request, act reasonably during the process and issue a decision in a timely manner.

Service and Support Animals

Reasonable accommodations for animals typically make up the majority of requests to associations, especially since many restrict animals in some manner.

Service animals are individually trained to work or perform tasks for the benefit of an individual with a physical, intellectual or mental disability. Such animals guide individuals with impaired vision, provide protection or rescue work, pull a wheelchair or retrieve dropped items. Under the Americans with Disabilities Act, service animals are limited to dogs and miniature horses.

An owner isn’t required to provide an animal’s proof of training or certification, but he or she must establish that the animal is necessary for using and enjoying one’s residence. Associations may not request a pet fee or deposit from a service animal owner because the animal is not a pet, but if the animal damages a common area, the owner may be required to pay for repairs. Service animals are permitted in all areas of the residence and common areas.

Similar to service animals, emotional support or companion animals provide some therapeutic benefit to a person with a mental, psychiatric or emotional disability and do not require specific training. The mere presence of the animal, which can be virtually any species of domesticated animal, mitigates the effects of the disability.

As the Bhogaita case in the introduction illustrates, requests for emotional support and companion animals have exploded over the past five years.

An owner must demonstrate a relationship between his or her ability to function and the companionship of the animal. The association may not request a pet fee or deposit from the owner here either. And like a service animal, if the emotional support animal damages a common area, the owner may be required to pay for repairs. Similarly, emotional support animals are permitted in all areas of the residence and common areas.

Parking Issues

Assigned or relocated parking spaces might be the second most common reasonable accommodation request made to associations.

As with any reasonable accommodation request, an owner must offer proof of the disability unless it is readily apparent, and there must be a reasonable relation between the disability and the assigned or relocated space.

Whether an association grants the request depends on the community’s parking situation. For example, if the association has unassigned parking spaces in common areas, the association must accommodate a request to use a spot closest in proximity to the owner’s residence or wide enough to accommodate an accessible van. If the association has assigned parking in common areas, it must seek to reassign spaces among owners. If the association only has deeded parking spaces or spaces in limited common areas, it has no obligation and legally cannot take away a space reserved for another unit. However, another owner would be welcome to agree to switch spaces to accommodate the request.

In addition, if the association has deeded spaces allocated to owners and common area parking owned by the community, it could require an owner to swap spaces. The association should strive to provide the disabled owner with equal access while also ensuring that the disabled owner’s benefit isn’t greater than the rights of other owners.

When an owner requests that a space be marked with blue paint or appropriate signage or that curb cuts be made, the association must pay the costs. However, if the owner requests that a new handicapped parking space be installed instead of simply switching to an existing space, the owner would pay for installation costs because it is a modification request instead of an accommodation.

Courts have held that associations cannot rely upon governing document restrictions to deny a reasonable parking request. In Astralis Condo. Assoc. v. Sec’y, United States Dep’t of Hous. & Urban Dev., two owners of a condominium unit had disabilities that caused them mobility problems. They owned the unit and two parking spaces located 230 feet from their unit. Other residents also owned parking spaces, but there were many association-owned common area parking spaces, including 10 previously designated handicapped spaces. Two of those spaces were about 45 feet from the disabled owners’ unit, and the owners asked the association to assign the spaces to their exclusive use.

The association denied the request, and the owners filed a discrimination claim. A judge determined that the association violated the Fair Housing Act, directed it to assign the spaces to the residents and awarded the owners monetary damages.

The association appealed, but the decision was affirmed. Although the association’s governing documents required unanimous approval of all unit owners to transfer a common element, the Fair Housing Act trumps any contract or agreement.

Reasonable Modification

Community associations also could be charged with discrimination if they refuse to permit, at the expense of the person with a disability, reasonable modifications if they are necessary to afford him or her full enjoyment of the premises. Reasonable modification requests may be made at any time during ownership and can include structural changes to interiors and exteriors of dwellings and common areas.

To show that a requested modification may be necessary, there must be an identifiable relationship between the modification and the individual’s disability. Examples of reasonable modifications include but are not limited to: widening doorways to make rooms more accessible for wheelchairs; installing grab bars in bathrooms; lowering kitchen cabinets to a height suitable for wheelchairs; adding ramps to entrances; or altering walkways to provide access to common areas. A request may be denied if it isn’t made by or on behalf of a person with a disability or if there is no disability-related need for the modification.

The owner seeking the modification must pay for the alterations. The association can require that the modification be installed in an appropriate and timely manner. And depending on the situation, such as if an owner makes changes for a tenant, the association may require that interior modifications be restored to the original condition at the owner’s expense if the changes are no longer necessary.

The owner is responsible for maintaining an approved modification exclusive to him or her, such as a ramp to a home’s front door. If the modification was installed on a common area and is used by others, such as a ramp to a condominium building, the cost of maintaining, removing and restoring may be the association’s responsibility.

Familial Status

Associations that treat people differently because of their age need to be careful they don’t violate the Fair Housing Act’s familial status category. Adult-only swimming pool rules and regulations, for example, treat families with children less favorably than those without. Courts have determined these rules are discriminatory.

Associations should evaluate their pool rules to ensure they aren’t exposed to familial status discrimination claims. The same problems could occur if associations try to limit or restrict access by age to other common areas, such as gyms, business centers and clubhouses. Policies related to curfews and occupancy limits also should be reviewed.

There are many other Fair Housing Act issues, including accessible design and construction, along with other analyses and pitfalls. Each is dependent upon specific facts and circumstances and the current status of federal and state fair housing laws.

It cannot be stressed enough that an association confer with its legal counsel as soon as possible when a fair housing issue arises. This will give the association its best chance at compliance and will serve to lessen the risk of a potentially devastating violation of the Fair Housing Act.

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