When dealing with the operation of common interest communities, some people begin to take on industry vocabulary and just expect everyone else to understand what they are saying and how important the statement being made may be. Statements such as, “Well, State law says, you must disclose board emails” and “the maintenance obligations for an association are set forth in the Declarations” (the CC&Rs if you are from further west) and the “Association must maintain the roofs”. While listening to industry vernacular can be mind-numbing, there are concepts that associations, managers, board members and owners really do need to pay attention towards. One of these being the requirement of the Fair Housing Amendments Act (the “FHAA”) and its state counterpart, which requires an association provide a “reasonable accommodation” and a “reasonable modification” to handicapped individuals in a community, where failure to grant may be discriminatory as to the owner requesting the accommodation or modification.
Generally speaking, these laws prevent an association or an owner from discriminating against a person in a protected class in the management, sale, and provision of housing. Many homeowner associations, at one point or another, will have discrimination charges filed, or threatened to be filed, against them. For the most part, such threats and charges result from an association enforcing the terms of its governing documents and compelling residents to do something they don’t want to do, or prohibiting residents from doing something they want to do.
What is a reasonable accommodation? According to the Joint Statement of the Department of Housing and Urban Development and the Department of Justice dated March 5, 2008, a reasonable accommodation is defined as, “a change, exception, or adjustment to a rule, policy, practice, or service” provided by an association. A reasonable accommodation may be made by waiving or modifying a particular rule, policy, procedure or practice in order for a handicapped or disabled person to have equal access to and enjoyment of their housing. For example, the association should grant a blind person’s request to have a seeing-eye dog, even if the association has a rule against pets.
Keep in mind, however, that although the accommodation must be reasonable, an association need not do everything possible to accommodate a handicapped or disabled person. In determining whether an accommodation is reasonable, courts will consider whether the accommodation imposes an undue financial or administrative burden on the association. Courts will also consider whether the accommodation fundamentally alters the nature of the association’s services.
Furthermore, an association is not required to approve a requested accommodation where the disability or handicap is not related to the accommodation. For example, an association need not accommodate a handicapped person’s request to pay her assessments at a later date where her inability to timely pay is based on her ex-husband’s failure to make alimony payments rather than on her handicap. On the other hand, if the handicapped person cannot pay her assessments in a timely manner because her disability check does not arrive until the 15th of each month, such accommodation may be reasonable.
What is a reasonable modification? Contrary to an accommodation, which is a change to a rule or practice, which must be made by an association, a modification is a physical alteration of a portion of the community. The Joint Statement, defines a reasonable modification as a “structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises.” Examples of reasonable modifications are wheelchair ramps, pool lifts, modifications to doors to accommodate wheelchairs, or grab bars.
An association must also allow a handicapped or disabled person, at his or her own expense, to make a “reasonable modification” necessary for the full enjoyment of the community. An Association does not need to pay for these modifications.
Again, however, the modification must be reasonable. While a reasonable modification may require the approval of a ramp for a wheel-chair bound person, the association need not approve a plywood ramp in a community that is primarily brick and wrought iron. The association may condition approval on the installation of a brick and wrought iron ramp. However, if the expense of the brick and wrought iron ramp would cause undue hardship for the handicapped person, the association cannot reject the ramp simply because of the aesthetic impact. The association might want to consider paying the additional cost to have the ramp comply with the association’s architectural standards.
Who can make requests for reasonable accommodations and modifications? Persons who are “handicapped” as defined by FHAA and state laws. “Handicap” is defined as a physical or mental impairment which substantially limits one or more of a person’s major life activities; a record of having such an impairment, or being regarded as having such an impairment. Although “major life activities” is not defined by the FHAA, courts generally agree that this term includes caring for one’s self, performing manual tasks, seeing, hearing, speaking and breathing. Discrimination based on handicap primarily occurs when an association refuses to give a reasonable accommodation or allow a reasonable modification to a handicapped resident when such an accommodation or modification is needed.
Because this area of the law is so problematic and can cost an association thousands of dollars in legal fees and penalties, an association should always consult with its legal counsel anytime it receives a request for an accommodation or modification.
By: David A. Firmin