It would appear that many boards, managers and, even attorneys, misconstrue an association’s obligations with regard to accommodating the handicapped under the Fair housing Act (Title VIII of the Civil Rights Act) and its Massachusetts counterpart. Thus, a review would seem in order.

More often than not, people confuse the Americans with Disabilities Act (“ADA”) with the Fair Housing Acts requirements. Generally speaking, for existing residential buildings the ADA has no applicability. Rather, it only applies to places of public accommodation. Rather, it is in the Fair Housing Act (“FHA”) which applies. That Act, amended in 1988, has two requirements. First, the owner of the property must allow a handicapped person to make reasonable alterations in the property, at their expense, to facilitate access and usage of the premises. Unfortunately for those of us in Massachusetts, our Legislative has gone further than Congress, and required the alteration to be at the owner’s expense. Cases under the Federal Act, and the Massachusetts Act itself, place a condominium or community association on the same footing as the owner of the property.

            The second requirement is that the association must, upon request, make reasonable accommodations in its services, policies and rules to permit a handicapped individual to utilize the property.

            The underlying premise of both requirements is that the physical alteration or modification in services, policies and rules must be reasonable. That is measured by the financial or other hardship imposed upon the association in meeting the need. Unfortunately, there are no bright line tests. Rather, each case must be judged on its own and with the costs involved in meeting the request the prime issue. In our experience, things like ramps and automatic door openers are will in most cases to be deemed reasonable expenses. However, the installation of closed circuit entrance monitors and elevators will not.

            Beyond this, the person making the request must have a bona fide disability - that is, a condition which, or which is perceived, to interfere with significant functions. A person confined to a wheel chair obviously meets such a standard, as would a deaf or blind person. However, what about a person claiming a psychiatric condition requiring the need of a companion pet. There the association is within its rights to request and receive adequate documentation (a) of the disability and (b) of the need for the requested accommodation. A note from the dentist or chiropractor doesn’t satisfy this requirement. Rather, a narrative report from a qualified physician should be provided. 

            In processing these requests board’s must take care to move cautiously. It only becomes a violation of the law to refuse to make an accommodation upon request. Thus, do not anticipate requests and never refuse a request unless and until you are sure of your ground. Further, the better course is never to refuse a bona fide request. Rather, propose an alternative accommodation if the request is unreasonable.

            The best advice is to always consult a qualified attorney experienced in these matters. While associations may feel unfairly burdened by these requirements, the penalties for violating the laws are far more onerous.