The Fair Housing Act (“FHA”) prohibits a community association from discriminating against a person in providing services or facilities in connection with a sale or rental because of disability. Prohibited discrimination includes (1) a refusal to make reasonable accommodations; and (2) a refusal to permit reasonable modifications.
Once a request for a reasonable accommodation/modification is submitted (either verbally or in writing), the community association has an obligation to engage in an “interactive process.”
Qualification for a reasonable accommodation/modification is a three-pronged test:
• Does the applicant have a verifiable disability?
• Does the request qualify as a Reasonable Accommodation or Reasonable Modification?
• Is there a nexus between the disability and the Reasonable Accommodation or Reasonable Modification?
One of the more common requests received in the community association context is a reasonable accommodation for an assistance animal. U.S. Department of Housing and Urban Development (“HUD”) recently issued a notice to assist housing providers and other entities which are subject to Fair Housing laws (including most community associations) in assessing a reasonable accommodation request for a service animal. The notice is fairly lengthy and detailed, and if you receive a reasonable accommodation request, you are encouraged to contact your community association lawyer. However, below I have provided some important highlights from the HUD notice:
• It is important to remember that assistance animals are not pets!
• There are generally two categories of assistance animals: (1) a service animal; and (2) another trained or untrained animal that does work, performs tasks, provides assistance, and/or provides therapeutic emotional support for individuals with disabilities (referred to as a “support animal”)
• It is important to distinguish between obvious and known disabilities versus non-obvious and unknown disabilities
• Once you distinguish between the type of assistance animal and type of disability (as discussed above) it will inform what types of information you can/cannot request from the individual making the reasonable accommodation request
• If the animal is not a common household pet, additional analysis and information is likely required
• DO NOT attempt to require a health care professional to use a specific form, provide notarized statements and/or statements under penalty of perjury, or provide an individual’s diagnosis or other detailed information about a person’s physical or mental impairments
Finally, please keep in mind that the intent of the Fair Housing laws is to ensure that disabled individuals avoid discrimination and are afforded equal opportunity to use and enjoy the dwelling.
