Recently, while reviewing a Federal district court case from the Southern District of Florida concerning a dispute over a disabled resident’s request for a service animal, it occurred to me how challenging it can be for an association to properly respond to FHA requests for reasonable accommodation (or modification), even if the board is trying its best to do the right and reasonable thing.
The case I mention above is Sabal Palm Condominiums of Pine Island Ridge Association v. Fischer, 2014 WL 1092361 (S.D.Fla.)). In it, a condominium association with a no-pets policy was held to have violated the Fair Housing Act by constructively denying a disabled resident’s request for a service animal. Deborah Fischer, a condominium resident who was confined to a wheelchair due to Multiple Sclerosis, notified the board that she was bringing home a trained service dog to assist with her tasks of daily living. The association rightly treated the notification as a request for a reasonable accommodation from its no-pets policy, but from there, the association’s handling of the request ultimately landed it on the losing side of a Federal court case.
The Sabal Palm association requested extensive documentation of Deborah’s disability, such as medical records from all her healthcare providers, all documents related to the nature, size and species of the dog, as well as all documents regarding its training. Even though Deborah eventually provided a medical history form from her doctor that confirmed she was disabled and explained the nature of her disability and the limitations it imposed, along with a letter from the dog trainer detailing the dog’s training, the association still was not satisfied and requested more information. Deborah continued to provide information consistent with the information she previously provided: that Deborah’s medical condition rendered her severely disabled and required her to rely on the assistance of others to maximize her function status. Yet, more than 4 months after receiving the first medical records, the Association inexplicably failed to grant Deborah’s request and then compounded their error by suing Deborah, arguing that she was not entitled to keep a service animal at the condominium.
The court was not pleased. In its decision, the court found that the association had more than enough information to grant the request and allow the dog to stay, and held that the continuing delay asking for even more information amounted to constructive denial. The association was held liable for damages. In fact, the board president was held liable as well, because he was found to have “personally committed or contributed to a Fair Housing Act violation.”
So, how does an association comply? First, an association needs to know if the FHA applies to their complex. The Federal Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability. It applies to multifamily dwellings of four or more dwelling units, so most condominiums must comply. A person with a disability is generally defined as any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment. The FHA requires an association to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling or common space. Associations must also allow for reasonable modifications to structures to afford equal use and enjoyment. Failure to do so where an accommodation or modification is warranted can constitute discrimination.
One could fill a law school course with all of the points of law and interpretations of each of the many provisions of the FHA and how they apply to condominiums. Yet, there are a few simple things an association can do to best ensure requests are properly handled when received.
First, there is no substitute for basic education on this topic in aiding board members and managers identify issues when they arise. To this end, there was a very helpful and informative Q & A statement published in 2004 called the “Joint Statement of The Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations Under the Fair Housing Act.” A big part of the challenge of compliance is simply knowing what types of situations may fall under the FHA, and being informed on how these laws are interpreted. Here is a link to the Joint Statement: http://www.hud.gov/offices/fheo/library/huddojstatement.pdf. Reading it is time well-spent.
Second, remember that a request for a reasonable accommodation does not need to contain the words “request” or “reasonable” or “accommodation.” If you receive a letter, email, voicemail or other communication that might be a request for an exception, change or adjustment to a rule, policy, practice or service at your association, and there is a connection to a person with a disability and their equal opportunity to use and enjoy a dwelling or common space, you should immediately review the request through the reasonable accommodation lens. It may be that the request does not implicate the FHA, or does not meet accommodation standards, but it is a good practice to review the inquiry as if it is a request for a reasonable accommodation (or modification, if it involves changes to building structures). Also, if your association has any publically accessible facilities, you may also be subject to the Americans with Disabilities Act.
Third, as the Sabal Palm case teaches us, even unreasonable delay in responding to a request, or requiring unnecessary documentation or overly burdensome procedural hoops, can result in a constructive denial. Do not delay in analyzing requests.
Requests that concern disabilities can be challenging for community association boards and managers. How to gauge whether a request is reasonable, or who pays for a requested modification, can add complexities to an already testing scenario. Realize that when it comes to disabled residents, it is very often the case that making changes to your rules and policies is not only the right and kind thing to do, but may it be required under the law. If you have questions, we are here to help.