One issue that comes up often in common interest communities is the responsibility that an association has when it comes to providing reasonable accommodations to residents with disabilities. Often managers and boards are left wondering what their options are in obtaining information necessary to evaluate such requests and the parameters within which such requests must be reviewed.
The Fair Housing Act (FHA) prohibits discrimination in housing based upon race, color, religion, sex (including sexual harassment), national origin, familial status, and persons with disabilities. With respect to the last category, the FHA requires housing providers, which includes associations, to permit a change or exception to a rule, policy, practice, or service that may be necessary to provide persons with disabilities an equal opportunity to use and enjoy their home and the community.
In response to a growing need for clarity and guidance on granting reasonable accommodations to persons with disabilities under the FHA, the U.S. Department of Justice and the U.S. Department of Housing and Urban Development issued a Joint Statement providing an overview of the FHA’s requirements. The Joint Statement guides how residents should seek accommodation and what information a housing provider may request from a person making such a request. The Joint Statement notes that a person seeking an accommodation “should explain what type of accommodation s/he is requesting and, if the need for the accommodation is not readily apparent or not known to the provider, explain the relationship between the requested accommodation and her disability.” At the same time, the Joint Statement provides that if the disability is not obvious “ a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’ s definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2) describes the needed accommodation, and (3) shows the relationship between the person’ s disability and the need for the requested accommodation.” Additional topics are further addressed in the attached Questions and Answers portion of the Statement.
An area that overlaps with a reasonable accommodation request but is not specially mentioned in the Statement is requests by residents for Emotional Support Animals (“ESA”) or Service Animals. A common reasonable accommodation is an exception to a no pet policy. A person with a disability that affects a major life activity may require the assistance of an animal that does work, performs tasks, or provides therapeutic emotional support because of the disability.
To address the prior Statement’s lack of specifics on this topic, HUD issued a more specific Public Notice on January 28, 2020. The Notice clarified how housing providers can comply with the Fair Housing Act when assessing a person’s request to have an animal in housing to assist because of a disability.
The Notice helps housing providers by outlining a process for complying with the FHA when assessing accommodation requests involving animals and information that a person may need to provide about his or her disability-related need for the requested accommodation.
We encourage managers and boards to review the Joint Statement issued by the DOJ and HUD and the Notice regarding Service and Assistance Animals. They will help provide a general understanding of an Association’s responsibility in addressing and responding to such requests from residents.
If you have any questions, please contact an Altitude attorney at 303.432.9999 or [email protected].