Property owners associations (“POA”) are routinely asked to evaluate requests from owners seeking to modify their home or property in some way, or seeking a variance from applicable rules and policies. In addition to ensuring that an owner’s request satisfies the applicable governing documents, the POA may find itself in a situation where there are additional considerations to make under the Fair Housing Act, which entitles certain owners to a “reasonable accommodation” or “reasonable modification.” In this article, we will detail what reasonable accommodations and modifications are, common types of requests, the qualifications for a reasonable accommodation or modification and the potential issues that may arise if a legitimate request is denied.

What are reasonable accommodations and reasonable modifications?

The Title VIII of the Civil Rights Act of 1968 (commonly known as the “Fair Housing Act” or “FHA”) prohibits discriminatory housing practices based on a person’s race, religion, sex, national origin, familial status, or disability. As part of the protection for persons with disabilities, the FHA requires POAs to provide reasonable accommodations and modifications under certain circumstances.

A reasonable accommodation is “a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.” In the case of POAs, the most common request is for the waiver of an existing rule or policy.

The rationale behind this requirement is that a certain rule or policy may have a different effect on persons with disabilities than it does on the rest of the population, resulting in disadvantages to persons with disabilities, even if those disadvantages were unintended and unforeseen when the rule or policy was adopted. For example, if a high-rise condominium association adopts a no pets policy, the policy could have an unintended negative effect on a blind owner who requires the assistance of a guide dog to navigate the building.

A reasonable modification, on the other hand, is a “structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises.” Reasonable modifications can include structural changes to the interior or exterior of a dwelling, or to common areas. However, in the context of POAs, most reasonable modifications will relate to common areas, as structural changes to dwellings will often fall under the reasonable accommodation definition since they tend to take the form of an exception to an architectural rule. While a POA may be required to allow a reasonable modification to a common area in certain cases, the owner requesting the modification is responsible for the associated costs.

The FHA makes it unlawful to refuse to make a reasonable accommodation or allow a reasonable modification when such accommodation or modification may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.¹ It is important to note that, when evaluating issues surrounding reasonable accommodations and modifications, a POA must consider not only the text of the FHA itself, but the wide body of interpretive guidance promulgated by the U.S. Department of Housing and Urban Development (“HUD”) and the U.S. Department of Justice (the “DOJ”), as well as existing case law.

What types of requests do people make?

While many POA boards and managers are familiar with requests for assistance animals and emotional support animals, the list below provides a few examples of less common requests:

• An exception from driveway size restrictions to allow extra room to operate a wheelchair-accessible vehicle
• An exception from parking regulations to allow a caregiver to park in visitor parking overnight
• Permission for an owner with impaired use of her hands to replace the doorknobs at a common area clubhouse with levers so she can open the doors

It would be impossible to list every type of accommodation or modification that could be requested as every person with a disability has unique needs. There is no particular method by which a request must be made, meaning a request can be submitted orally or in writing. However, HUD advises the requesting party should make the request in such a way that a reasonable person would understand a reasonable accommodation or modification request is being made. If a POA receives a request that mentions a disability, the POA should assume it is a request made under the FHA and consult with the POA’s attorney to determine how to proceed.

Who qualifies for a reasonable accommodation or reasonable modification?

A person will generally be entitled to a requested reasonable accommodation or modification if: (1) that person meets the FHA’s definition of a person with a disability; and (2) there is a nexus between the person’s disability and the requested accommodation or modification.

The FHA defines a person with a disability as: (1) an individual with a physical or mental impairment that substantially limits one or more major life activities; (2) an individual who is regarded as having such an impairment; or (3) an individual with a record of such an impairment.² If a person’s disability is not obvious or readily apparent, the POA may request documentation necessary to verify that the person meets the definition provided above. Per HUD and the DOJ, this could be documentation provided by a doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability. In most cases, a POA should not request medical records or detailed information about the nature of a person’s disability.

Once it has been established that the request has been made by or on behalf of a person with a disability, the POA must next evaluate whether there is a sufficient nexus between the disability and the requested accommodation or modification. If the connection is not obvious or readily apparent, the POA may request documentation necessary to show the disability-related need for the requested accommodation or modification. This documentation can be provided by the same parties listed above. If neither the disability nor the disability-related need for the requested accommodation or modification is obvious or readily apparent, documentation of each may be requested at the same time.

HUD and the DOJ have provided the following example of when a requested modification does not have a sufficient connection to the requesting party’s disability:

“A homeowner with a mobility disability asks the condo association to permit him to change his roofing from shaker shingles to clay tiles and fiberglass shingles because he alleges that the shingles are less fireproof and put him at greater risk during a fire. There is no evidence that the shingles permitted by the homeowner’s association provide inadequate fire protection and the person with the disability has not identified a nexus between his disability and the need for clay tiles and fiberglass shingles. The homeowner’s association is not required to permit the homeowner’s modification because the homeowner’s request is not reasonable and there is no nexus between the request and the disability.”

A request may be denied if: (1) it is not made by or on behalf of a person with a disability; or (2) there is not a sufficient nexus between a person’s disability and the requested accommodation or modification. There are limited exceptions to the general requirement to grant a reasonable accommodation or modification when the criteria set forth herein has been satisfied. For example, a POA may deny a request for an assistance animal if the specific animal in question (not just the type or breed of animal) poses a direct threat to the health or safety of others despite any other reasonable accommodation that could eliminate or reduce the threat. However, this exception is narrower than it may seem at first glance and is almost never applied. POAs seeking to determine whether an exception to the requirement to grant a reasonable accommodation or modification applies should consult with an attorney.

What happens if a POA denies a legitimate request for a reasonable accommodation or reasonable modification?

POAs must balance the requirement to promptly evaluate a request with the need to complete a thorough review and, if necessary, seek counsel.  A person who believes they have been wrongfully denied a reasonable accommodation or modification has one year to file a complaint, which will trigger an investigation, or two years to file a lawsuit. Each of these scenarios can cost a POA a significant amount of time and money. Many owners will choose to file a complaint as this option is free and does not always require the assistance of an attorney. The complaint may be investigated by HUD, or it may be investigated by a state or local agency. For example, complaints in Texas may be administered by the Texas Workforce Commission or the Civil Rights Division of the city in which the POA is located.

If a complaint is filed, the POA will have an opportunity to respond in writing. Additionally, the process typically involves interviews and requests for documents to assist the investigator in evaluating the claim. If the investigator determines a discriminatory housing practice has occurred, the investigating agency may choose to file a lawsuit against the POA. Alternatively, the complainant may still choose to file a lawsuit against the POA directly. In certain circumstances, the case between the complainant and POA may be heard by a HUD Administrative Law Judge (“ALJ”).

If a lawsuit is filed and the POA is found to have committed a discriminatory housing practice, the POA could be held liable for actual damages, punitive damages and attorney’s fees. In the case of an ALJ hearing, punitive damages are replaced with civil penalties, which are capped at anywhere from $16,000 to $65,000, depending on whether the POA has a past history of similar violations.

POAs should note that the process of evaluating a request for reasonable accommodation or modification is very rarely intuitive. There are numerous considerations at play and violations of the FHA can occur even when a POA is acting with the best intentions. This is why POAs should work closely with counsel at every stage of the process.

^{1, 2} https://www.justice.gov/crt/us-department-housing-and-urban-development