Community associations are increasingly faced with requests from residents that the associations modify their policies or even their physical facilities to accommodate a disabled individual. Unfortunately, a great deal of confusion exists for associations and their residents regarding the disability laws applicable to the associations and the onus they place on the association when responding to these requests. This article is intended to provide associations with a primer for understanding and distinguishing between the obligations created for associations under the two primary disability rights statutes: the Americans with Disabilities Act (“ADA”) and the federal Fair Housing Act (“FHA”).
Congress enacted both the FHA and ADA as remedial legislation, intended to address historical inequities in access to housing and commercial facilities suffered by individuals with disabilities. Because of the strong public policy concerns underlying the adoption of both Acts, both are liberally interpreted to provide protection for the classes of individuals they cover.
As a result, community associations must take care to understand their obligations under both Acts and operate their facilities and services in compliance with those obligations. There is little room for error.
Generally, community associations need to be most concerned about the requirements of the FHA. It applies to all community associations and all parts of all community associations. Under the FHA, housing providers, such as community associations, are obligated to provide certain protected classes of people with equal access to housing and to the facilities and services associated with housing. A failure to provide equal access to housing and the facilities and services of the association based on a person’s status in a protected class constitutes discrimination.
While an association has broader responsibilities under the FHA to prevent discrimination against several protected classes, when addressing the concerns of disabled guests and residents, there are three primary areas of concern for an association under the FHA: adoption of rules and regulations, prompt and correct handling of reasonable accommodation and modification requests, and design and construction guidelines.
- Non-Discriminatory Rules
Community associations already know that they cannot adopt unreasonable rules that are arbitrary and capricious, but the FHA adds another layer of requirement for rule adoption. Pursuant to 42 U.S.C. § 3604(f)(2), a community association is prohibited from discriminating against any of the protected classes, including disabled residents and guests, in the provision of the services it provides and the facilities that are used by its residents. In order to comply with this requirement, an association cannot adopt a rule or regulation that discriminates against its residents and interferes with their access to the services of the association or use of the facilities.
Most often this becomes an issue for associations that have adopted well-intentioned rules and regulations intended to limit the use of services and facilities by children. It is a rare and typically unintentional case where an association will adopt a rule that discriminates against a disabled resident or guest. Nevertheless, if a resident raises a concern that a rule might be inadvertently discriminatory to a disabled owner, the association should give due consideration to that concern.
- Reasonable accommodation and modification requests
Increasingly, community associations are receiving requests from residents, and in some cases, guests to grant exceptions to their rules, policies, practices, and services as an accommodation that would allow a disabled resident or guest equal access to the community association. Alternatively, these requests will ask the association to modify the physical facility of the association to allow the resident or guest equal access to the association. Under the FHA, the association is obligated to promptly respond to these requests and, as reasonable and necessary, to grant such exceptions or allow such modifications to the association’s physical facilities in order to accommodate the disabled individual. See 42 U.S.C. §§ 3604(f)(3)(A) and (B).
These provisions of the FHA are reactive, meaning that the association is not obligated to do anything until it receives an actual request for an accommodation or modification. There are no magic words, however, that must be used in making such a request. If a resident asks for an exception to an association rule or a change to the unit or common element because she or her guest is disabled, the association must assume it has received an accommodation or modification request even if those words have not been used.
Once the request has been made, the association is required to act promptly in responding to request. An association can get in as much trouble under the FHA by failing to timely respond to a request as it can in responding incorrectly. The association is entitled to ask the resident for additional information regarding the request, but only if needed to decide whether or not to grant the accommodation or modification. If an owner in a wheelchair asks the association to install automatic door openers, the association cannot ask for additional information on the disability since it is apparent. If the disability is not known or the relationship between the disability and the accommodation or modification requested is not clear, the association can ask for additional information before considering the request and may, in some cases, ask for information from a health care provider to substantiate the reasonableness of the request.
Occasionally, the accommodation or modification request will have an associated expense. If the request is for an accommodation, such as assignment of a parking space or keeping an emotional support animal in a non-pet building, the association cannot charge the resident for the accommodation. This includes not charging a pet fee or requiring additional insurance for the emotional support animal. All costs associated with the accommodation must be borne by the association. For a reasonable modification request, however, when the resident is seeking a change to the physical facility of the association, the requesting resident must agree to pay for the actual modification. If the modification is being made to the common area or elements of the association, the association will be required to pay for ongoing maintenance of the modification, but the requesting resident must pay for its installation.
Given the increasing number of reasonable accommodation and modification requests, community associations should give due consideration to adopting a resolution establishing procedures for handling such requests. While each request must be considered on a case-by-case basis, such policy nevertheless benefits the association by educating the board and management about their obligations in responding to such requests and avoids mishandling the requests.
- Design and Construction
Under the FHA, any housing designed and constructed for first occupancy after March 13, 1991 is obligated to have certain features to allow equal access to the housing by disabled individuals. The guidelines establishing the required accessibility features are found in the Fair Housing Act Design Manual (“FHADM”). Most jurisdictions have adopted the requirements of the FHADM into their building codes, so most developers designing and constructing community associations after March 13, 1991 should have constructed the association in compliance with the FHA requirements. On occasion, however, an association may find that the developer failed to meet the FHADM requirements and it will need to consider whether its property needs to be corrected. This is not a common occurrence, but it can be an expensive problem to correct.
The ADA applies to community associations less often than the FHA, but associations must nevertheless be alert to the ADA and understand when it does apply so they do not inadvertently subject themselves to its obligations. The ADA, like the FHA, is intended to provide disabled individual with equal access to the community generally. It does not, however, apply to private entities unless such entity engages in specific conduct that opens them up to use by the general public. Community associations are mostly exempt from the requirements of the ADA because they are private and do not open themselves up to public commerce.
Allowing use of the property by owners, long term rentals and guests of residents does not make the association a place of public accommodation. Occasionally, however, an association will engage in conduct that will create obligations under the ADA. Pursuant to Title III of the ADA, any portion of certain private properties that are open to the public and affects commerce is a place of public accommodation subject to the requirements of the ADA. For a community association, this means that if it allows members of the public to use a portion of its common areas or elements, that portion of the property and all accessible routes to such portion of the property are subject to the ADA. If an association elects to allow swim teams from other communities to come to the pool for meets or rents out the community room to non-resident groups, the pool, the community room, and the accessible routes to such facilities will become subject to the ADA requirements.
Communities dealing with short term rental issues in units should also be aware that such rentals may create exposure under the ADA. Under the ADA, any portion of a private residence used in the operation of a place of public accommodation, such as hotel or lodging use, is covered by the ADA and this extends to the elements used to enter the private residences and those portions of the property available for use. If a unit owner, therefore, rents their unit as a short-term rental, that unit and all parts of the condominium used to access that unit or available for use by the short-term renter are subject to the ADA. Associations unwilling to subject themselves to the ADA should be mindful of this concern when deciding how to enforce any short-term rental limitations in their documents.
An association may elect to open its community facilities up as a place of public accommodation as a benefit to its residents, but it needs to be aware of the consequences of such decision. The ADA requires a place of public accommodation to either comply with the ADA Accessibility Guidelines (ADAAG) or to upgrade its existing facilities to remove architectural barriers to disabled individuals to the extent it is readily achievable to do so. If, therefore, the accessible route to the community room needs a ramp or curb cuts to comply with the ADAAG, the association will need to incur that expense. If a pool becomes a place of public accommodation, the association will need to comply with the ADAAG by adding accessible means of entrance and exit to the pool, which can be expensive.
In addition to obligations to upgrade the property, the association may also be obligated under the ADA to allow exceptions to its policies, practices, and procedures to accommodate the needs of disabled members of the public visiting the community. This could include allowing services animals to use all portions of the property that constitute a place of public accommodation as needed for the disabled individual. The association will not, however, be able to ask for a special identification for the service animal or the disability of the individual bringing the service animal on the property. It can only ask whether it is a service animal and what tasks it has been trained to perform.
Ultimately, the ADA and FHA have good intentions and compliance with their requirements provides a benefit to community associations, as it broadens the pool of potential owners and residents by making the property accessible by all. Nevertheless, both statutes can present potential liability and significant administrative work for an association that does not prepare for dealing with these issues in advance. All community association would benefit, therefore, by making certain they understand fully their ADA and FHA obligations and putting into place those procedures needed to make certain the association meets their requirements.
By Marla J. Diaz, ESQ.
Marla Diaz is a partner with the law firm Whiteford, Taylor & Preston. She divides her practice between general civil litigation and general counsel representation of community associations in the Commonwealth of Virginia. She has significant trial and general litigation experience in the state and federal courts in the Commonwealth of Virginia, including litigating various community association issues, fair housing defenses, construction defect cases, commercial litigation matters, and general real estate litigation matters. Marla is a member of and regular speaker for the Washington Metropolitan Chapter of the Community Association Institute. She teaches primarily on issues of fair housing law compliance and defense of fair housing complaints. Marla was recently acknowledged as a “2018 Leader in the Law” by Virginia Lawyer’s Weekly for her involvement in two seminal cases before the Virginia Supreme Court. Marla is a graduate of Collage of William and Mary and the Wake Forest University School of Law.