Being a member on your community association’s board of directors comes with many duties and obligations, many of which are anticipated and understood as being “part of the job.” Less known and understood is the responsibility for responding to resident requests for reasonable accommodation under federal and state fair housing laws. Responding to these requests is a daunting responsibility as they involve resident disabilities and sensitive medical information, and how the board responds and addresses the request has potential risk and liability implications. Accordingly, associations must take care to handle the requests, especially when they involve invisible or competing disabilities.
Title VIII of the Civil Rights Act of 1968 (Act), 42 U.S.C. §3601 et. seq. (1968), was enacted by Congress to prevent housing discrimination based on race, color, religion, sex, and national origin, which was later expanded to include discrimination based on a physical or mental disability. Such discrimination may be when a board refuses to make reasonable accommodations in the association’s rules, policies, practices, or services when such accommodations may be necessary in order for the resident to be able to reside (or continue residing) in their home. A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service. Examples may include requests for an assigned parking place close to the building entrance, an emotional support animal in a no-pet community, or the removal of all carpeting in a second-floor unit.
You would think that a request for a reasonable accommodation would be easy, as no one wants to deprive a disabled resident of their use and enjoyment of their home and/or community amenities. However, not all requests are simple and obvious, or have an obvious solution. According to the U.S. Department of Housing and Urban Development’s (HUD) Office of Fair Housing and Equal Opportunity (FHEO) in, its 2020 Fiscal Year Report on Fair Housing, approximately 60% of all fair housing complaints investigated involved reasonable accommodation and disability access denials.
Requests for accommodation can be difficult for a board when the disability is not visible or obvious. In accordance with the Act, a disability can be a physical or mental impairment that substantially limits one or more major life activities and include such “invisible” conditions or diseases as autism, epilepsy, cancer, heart disease, diabetes, asthma and/or COPD, mental or emotional illness, some drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism. An individual with heart disease may not appear to have mobility issues, but depending on their condition, it may be essential to have an assigned parking space near their building entrance. Or an individual with severe post traumatic stress disorder (PTSD) may require an emotional support animal to address their symptoms.
In processing an accommodation request, the association is entitled to ask for medical evidence that supports the resident having a disability. This does not give the association the right to ask about the nature of the resident’s disability, but it does give them the right to ask for proof of the disability. Examples of acceptable proof of disability would be copies of the disabled resident’s DMV issued handicap plates or placards, or a letter from the resident’s doctor, chiropractor, or social worker.
However, not all requests meet HUD’s requirement for granting a reasonable accommodation. Generally, when a request is made, the law is going to require the association to grant it if the accommodation is necessary to enable the disabled resident to live in and fully enjoy the premises and granting the accommodation will not create an undue burden or a “fundamental alteration” of the nature of its operations. To show that a requested accommodation may be necessary, the requested accommodation must be related to the disability. If there is no proven relationship between the request (e.g., assigned parking space) and the disability, or if there is a relationship between the request and the disability, but to grant the request would fundamentally change the way the association operates, the request may be denied. If denied, the association may need to work with the resident on potential alternatives or options.
But what about a scenario where a resident makes a request for accommodation, but it turns out that the accommodation may disturb or unreasonably interfere with another resident’s use and enjoyment of their property. Although competing disabilities are not a frequent occurrence, they do crop up from time to time. How do you handle an accommodation request to replace carpeting with hardwood to enable an upstairs resident to maneuver with a walker in the unit, when you are made aware that the resident in the unit directly below suffers severe and chronic anxiety, which is triggered by the noise of the walker from the unit above? And what of the resident with severe allergies and COPD who requests a smoke-free building, but the resident next door has a medical condition that is only eased by medical marijuana?
Although there are no directly applicable cases in the Washington Metropolitan courts, there is a 2020 case out of the Iowa Supreme Court that has gained attention, nationwide. In Cohen v. Clark, 945 N.W.2d 792 (Iowa 2020), a resident suffering from chronic mental illness (supported by a psychiatrist’s note) requested an accommodation to maintain his emotional support animal in an otherwise no-pet community. One of the neighboring residents has an extreme allergy to pet dander and notified the housing provider of the issue and her objection. The housing provided grants the accommodation but takes steps to try and mitigate. The housing provider is sued by the resident with the allergies, and the Supreme Court of Iowa finds for the allergic resident, with the rationale that with competing disabilities, the housing provider should have followed a “first-come, first-served” policy.
When faced with competing disabilities, boards should make their determination after a fact-specific analysis, balancing the rights of two disabled residents.
The board should work with both parties to see if there is a compromise that may be reached in which both disabilities are respected and accommodated. If the board is unable to come to a resolution that satisfies both parties, then the board will need to weigh whether granting the requested accommodation will be a “direct threat” to the other resident’s health or safety, which can be grounds for denying an accommodation request.
There are many pitfalls with fair housing accommodation requests. Boards must review each request individually with a mind towards collaboration. If a request seems unreasonable or not supported by an apparent disability, the initial response to the request should never be an outright “no.” The board should make it clear to the resident that the association wishes to work them in coming to a resolution that is both feasible and reasonable, whether it is an alternative accommodation or modification that would effectively their disability-related needs.
If your board should receive an accommodation request, especially involving invisible or competing disabilities, you should consult with the association’s legal counsel to review the request.
By Sara J. Ross, ESQ.
Sara is a shareholder and attorney at the law firm Chadwick, Washington, Moriarty, Elmore & Bunn, where she has practiced community association law for nineteen years. She has been an active member of CAI since 2003, at both the local and national level. She is currently serving on the WMCCAI Board of Directors and on its Executive Committee and is currently on the national CAI Board of Trustees, as well as serving as chair-elect for the CAI Business Partners Council. Over the years, Sara has served on numerous WMCCAI committees, several subcommittees and task forces, and has served as a committee chair and co-chair. She was awarded the WMCCAI Rising Star Award in 2005. Sara also writes articles for Quorum and other trade publications and is a frequent speaker at chapter and national education sessions.