REASONABLE ACCOMMODATIONS
PROBLEM: The covenants of our association prohibit pets. An owner who moved in recently is blind and has a seeing-eye dog that she insists she should be allowed to keep. When the board cited her for violating the covenants and began fining her, she sued.
SOLUTION: This situation is not unusual but can be problematic for boards especially if they do not understand what the law requires.
The federal and state Fair Housing Laws require housing providers (which include condominium associations) to provide “reasonable accommodations” to residents with physical or emotional disabilities. In most cases, that means the board must ease or waive covenants or rules for residents who require accommodations to ensure that they have “full enjoyment” of their homes. Boards that fail to approve legitimate accommodation requests risk being sued for discrimination, which is no doubt what this owner is alleging.
Many boards reject accommodation requests automatically, because the requests violate association rules. They need to look beyond the rules and understand that state and federal requirements override them. Boards can’t ‘just say no’ if the Fair Housing Laws require them to say yes.
But boards aren’t required to approve accommodations automatically either.
The law anticipates an “interactive process” in which boards can verify that the resident has a disability (if it isn’t apparent); confirm that the requested accommodation will address the disability; and propose alternatives that the board might prefer.
There are many potential minefields for boards in this process. For example, if the disability is obvious, as it would be if an owner is blind, the board can’t require the owner to document the disability or ask any questions about it.
Unlike physical disabilities, emotional disabilities – such as anxiety and depression – aren’t apparent and the board can require a letter from a “medical professional” verifying that the owner has a disability that, in the words of the statute “substantially [limits]” his/her ability to perform “one or more life functions.” The letter does not have to identify the disability or provide any details about it; it must simply verify that the resident has a disability and that the requested accommodation will help the owner cope with it.
Boards can’t question whether an owner actually has a disability even if they have reason to doubt it (you will never win that dispute); but they can suggest alternatives to the accommodation an owner is requesting – a dog smaller than a Great Dane, for example, or a dog or cat rather than the alligator, snake or kangaroo the owner has requested as an “emotional support” pet. However, while boards can suggest alternatives, residents aren’t required to accept them. As a practical matter, boards will usually have to approve the animals residents demand if medical professionals agree the animal is necessary.
Boards can impose some reasonable restrictions. For example, boards can require residents to:
Care for their animals and clean up after them;
Ensure no nuisance is created;
Remove an animal that harms, threatens or disturbs other residents;
When association clients ask for advice in dealing with an accommodation request (which they should do before becoming embroiled in a dispute over it), we usually advise them not to fight if that can be avoided.
The courts and the MCAD almost always side with the owners seeking accommodations and against the associations that want to deny them. Given that they are unlikely to win these disputes, boards should do what they can to avoid them.
Establish written procedures for handling accommodation requests and follow them.
Consider requests seriously and handle them respectfully.
Respond quickly to accommodation requests. Aim to acknowledge the complaint and initiate the review process within 10 days or less. Boards are required to negotiate in good faith. Delays in responding to requests or issuing decisions will suggest that they are not.
Even if you suspect that an accommodation request is bogus – a pretext for obtaining a pet in a community that prohibits them, for example -- treat it seriously. Avoid disparaging comments, such as “We know you’re not really disabled,” that could be cited as evidence supporting a discrimination complaint.
Don’t assume that approving an animal as an accommodation for a disabled resident will require you to approve pets for all owners who demand them. Boards must waive rules only if residents qualify for Fair Housing accommodations.
Before deciding to fight an accommodation request, consider:
The litigation costs, which will almost certainly exceed by orders of magnitude the cost of the accommodation the owner is requesting. While insurance may pay your legal fees, it won’t pay for the damages and attorneys’ fees awarded if you lose.
The negative publicity and lingering ill will that are the unavoidable and harmful byproducts of discrimination suits, which can be as costly in a different way as the litigation.
Instead of putting your foot down, which many boards do reflexively, put yourself in the shoes of the person requesting the accommodation. If you or a family member were blind, would you think a request for a seeing eye dog or a parking space located closer to your unit was unreasonable and should be denied?
If you have any questions relating to fair housing requirements and/or requested accommodations, contact Dawn McDonald directly or reach our MEEB attorneys at law@meeb.com.