How To Handle Reasonable Accommodation Requests

A request for a reasonable accommodation typically presents itself when an owner needs permission to break an association rule in order to accommodate a disability.

The Fair Housing Act does require that a community association provide a reasonable accommodation in its rules, policies, practices, or services, when such accommodation may be necessary to afford such person equal opportunity to use and enjoy a dwelling. It is unlawful for a community association to refuse a reasonable accommodation.

To determine whether a request is reasonable, the Association can consider the following factors: (1) whether the accommodation imposes an undue financial and administrative burden on the association; (2) whether the accommodation causes changes, adjustments, or modifications to the existing rules that would substantially alter their nature; (3) whether there are safety issues related to the accommodation; and (4) whether there exist alternatives to the accommodation that accomplish the benefits more efficiently.

An association can avoid financial burden by requiring that the owner pay for and/or maintain the requested accommodation. For example, if an association’s governing documents prohibit fences, the association may require that the owner pay for the installation of the fence. Additionally, the association may require restoration of the premises when the reasonable accommodation is no longer necessary. A requirement to remove the fence could arise when the house is sold or the disability no longer exists. The owners would have an obligation to market the property with the information that the fence will be removed.

The true nature of the covenants and restrictions can be maintained so long as the association makes it clear that the particular accommodation is an exception to the rule as required by federal law. (In other cases, Boards have chosen to create policies and procedures for reasonable accommodation requests to prohibit every owner in the association from requesting permission to break a rule.) Any potential safety concerns should be identified and noted and the owners will be responsible for maintaining those concerns as well.

Finally, the Board should inquire as to whether the owners have researched any alternatives to reach the desired outcome without requiring an accommodation; however, just because an alternative exists, does not mean the association can deny the request. If the alternatives are more expensive or less efficient, they may not be considered as reasonable as the fence.

An individual requesting a reasonable accommodation based on a disability must provide an identifiable relationship or nexus between the requested accommodation and the disability. A person with a disability is one who has a physical or mental impairment that substantially limits one or more major life activities. The association may request written verification from the medical provider to verify such a link, but may not request extensive private medical information beyond what is necessary for the Board to determine the necessity of the request for accommodation. A Board’s refusal of a reasonable accommodation could result in litigation. An owner could file a complaint with the Ohio Civil Rights Commission and allege discriminatory housing practices. The Ohio Civil Rights Commission would investigate the claim to determine whether probable cause exists to support the claim of discrimination. If probable cause does exist, an administrative hearing would be held and the judge could issue money damages, injunctive relief, and monetary penalties. Alternatively, the owner could file a lawsuit in state or federal court within two years of the Board’s refusal. An association must be able to intelligently articulate why the request is unreasonable, or else it is possible that a court would most likely find against the association.

Federal courts have held that the denial of a request based on the provisions of the governing documents can be unreasonable. In one case, a condominium association argued that by assigning the owner an exclusive parking space for handicap purposes, it would violate the governing documents that allowed for all owners the right to use the common areas equally. The court, however, held that the association’s obligation to avoid enforcing provisions that had a discriminatory impact trumped the association’s duty to uphold the provisions of the documents. Essentially, the court ruled that the association could not avoid liability under the Fair Housing Act by using the terms of its governing documents as a shield. See Gittleman v. Woodhaven Condominium Association Inc., 972 F.Supp. 894 (D. NJ 1997).

The failure of the association to obtain the necessary approval to create such policies and procedures is not an excuse that can be used to deny the reasonable accommodation. As referenced above, the court in Gittleman v. Woodhaven Condominium Association Inc. held that even if the governing documents could not be amended or supplemented, the association was still prohibited from enforcing the rule because it would violate the Fair Housing Act.

If your association is faced with a reasonable accommodation request, please contact our office for specific advice. In addition, we can provide your association forms to give to the owner requesting the reasonable accommodation, which is to be completed and returned by their certified medical professional before the association is required to examine whether to grant the request for a reasonable accommodation.

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