It seems there has been a recent
surge in the number of news stories about travelers bringing exotic animals and
other livestock onto
airplanes as emotional support animals. In fact, the
popularity of animals on commercial flights has become so great that some airlines
have begun taking a proactive approach to the new trend by revisiting and
revising their policies on the subject. Making accommodations for those with
emotional support animals, however, is by no means limited to the airline
industry. As Kim Bielan wrote
last fall in her article, Accommodating Reasonable Accommodations for Service and
Emotional Support Animals, fair housing laws that provide individuals with
disabilities the protection to have emotional support animals—which are
distinct from and are not to be confused with trained service animals—also
extend to the condominium context. In addition to providing for support animals
in private housing, state and federal laws also impose obligations on
condominium associations to make certain reasonable accommodations and/or
modifications for persons with disabilities. Such obligations are meant to
afford everyone the ability to use and enjoy their property, regardless of
disability status.
As the number of public
discussions surrounding disability accommodations continues to rise,
condominium associations will likely receive more requests from residents to
make exceptions to policies or to make modifications to the existing premises.
For example, requests for additional disabled parking spaces, wheelchair ramps,
and automatic doors are not uncommon. This area of law is complex, and it can
be confusing for associations. The questions we hear from trustees often relate
to what the law requires and who is responsible for the cost. My goal in
writing this article is to provide a background of the disability
discrimination laws that most often impact condominiums and to give you a
blueprint of sorts to use as a starting point if and when a unit owner asks for
an accommodation or modification of the property.
Such obligations are meant to
afford everyone the ability to use and enjoy their property, regardless of
disability status.
Both the state
anti-discrimination statute, Massachusetts General Laws Chapter
151B, and the federal Fair Housing Act, 42 USC
§3604 (and their respective regulations) prohibit disability-based housing
discrimination. Importantly, these laws apply to condominiums to the same
extent as other forms of housing. In some cases, and as I’ll explain below,
state law imposes even greater responsibilities than the federal statute.
Reasonable Accommodations
Under the state and federal law, it is considered discrimination for a
condominium association to refuse to make reasonable accommodations in rules,
practices, policies, or services when such accommodations are necessary to
afford a disabled person equal opportunity to use and enjoy the premises,
including private units and public and common use areas. Whether such an
accommodation is reasonable, requires highly fact-specific inquiry and a
case-by-case determination, but cost alone is typically not sufficient to
render an accommodation unreasonable.
Example
1.
A condominium has a “no pets” policy. A deaf resident requests that the
association allow him to keep a dog in his unit as a reasonable accommodation.
The resident explains that the dog is an assistance animal that will alert him
to several sounds, including knocks at the door, sounding of the smoke
detector, the telephone ringing, and cars coming into the driveway. The
association must make an exception to its “no pets” policy to accommodate this
tenant.
Example
2.
A condominium has a policy of providing unassigned parking spaces to residents.
A resident with a mobility disability, who is substantially limited in her
ability to walk, requests an assigned accessible parking space close to the
entrance to her unit as a reasonable accommodation. There are available parking
spaces near the entrance to her unit that are accessible, but those spaces are
available to all residents on a first come, first served basis. The association
must make an exception to its policy of not providing assigned parking spaces
to accommodate this resident.
Example
3.
As a result of a disability, a resident is physically unable to open the
dumpster placed in the parking lot by the condominium association for trash
collection. The resident requests that the association send a maintenance staff
person to his unit on a daily basis to collect his trash and take it to the
dumpster. Because the association is a small operation with limited financial
resources and the maintenance staff are on site only twice per week, it may be
an undue financial and administrative burden for the association to grant the
requested daily trash pick-up service. Accordingly, the requested accommodation
may not be reasonable.
Reasonable
Modifications
State and federal law also prohibit refusing reasonable modifications of
existing premises occupied or to be occupied by such person, if the
modifications are necessary to afford the individual full enjoyment of the
premises. Examples of such modifications could include ramping the main
entrance of a condominium, lowering kitchen cabinets inside of a unit, and
installing a shower grab bar. There must be an identifiable relationship
between the request and the individual’s disability.
Example 1. A tenant, whose
arthritis impairs the use of her hands and causes his substantial difficulty in
using the doorknobs in his apartment, wishes to replace the doorknobs with
levers. Since there is a relationship between the tenant’s disability and the
requested modification and the modification is reasonable, the housing provider
must allow him to make the modification at the tenant’s expense.
Example 2. A resident 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 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 association is not required to permit the modification
because the resident’s request is not reasonable and there is no nexus between
the request and the disability.
While both statutes make it
unlawful to refuse to permit reasonable modifications, federal and
Massachusetts law differ with respect to who is responsible for the cost of the
changes. Under the FHA, reasonable modifications must be allowed at the expense
of the disabled resident. However, the FHA, as with all federal law,
establishes only the minimum requirements with which state laws must comply.
Thus, states can impose additional requirements as long as the federal minimum
is met.
The Massachusetts
anti-discrimination statute, unlike the FHA, sets forth that reasonable
modification could come at the expense of the association, as opposed to the
resident. Pursuant to state law, the question of who pays for a reasonable
modification begins with: 1) the total number of units in the condominium and;
2) ownership of the area to be modified
Under the Massachusetts
statute—and barring undue hardship, which I will explain below—condo
associations for properties with ten or more units could be responsible for the
cost of making reasonable modifications to parts of the existing premises which
are owned by the association as common area. For example, Massachusetts law
states that where a condominium contains at least ten units, and the front
entrance to the building in which a unit is located consists of no more than
five steps, installing a wheelchair ramp for a disabled resident is a
reasonable modification that could come at the expense of the association.
As with accommodations to rules
or policies, however, whether a modification is reasonable is a case-by-case
determination that requires a highly fact-specific inquiry, and the analysis
does not end with the individual characteristics of the resident. Indeed, even
if the modification is necessary to afford the disabled individual full
enjoyment of the premises, it could nevertheless be deemed unreasonable. Under
Massachusetts law, for example, modification to condominium common area paid
for by the association is not reasonable—and therefore, is not required—if it
would cause an undue hardship.
There is no bright-line rule for
what constitutes undue hardship, so courts look at a variety of factors. Some
of the factors that a court might consider when determining whether the burden
caused by paying for an otherwise reasonable modification rises to the level of
undue hardship include:
▪
the nature and cost of the modification needed;
▪
the nature and cost of the modification needed;
▪
the extent to which the modification would materially alter the marketability
of the property;
▪
the overall size of the property, including but not limited to, the number and
type of units, size of budget, and available assets, and;
▪
the ability of the association to recover the cost of the modification through
a federal tax deduction.
It is important to understand
that these factors and any other relevant information are considered as a
whole, rather than in isolation.
Best Practices
▪
Create a procedure for handling reasonable accommodation/modification requests
and make residents, and prospective residents, and board members aware of this
policy. It should state, at minimum, how a person may request an accommodation
or modification, to whom the person should make the request, and the time frame
for approvals. This may aid individuals with disabilities in making requests
and it may aid associations in handling requests. Further, in the event of a
dispute later on down the line, having a procedure in place could help provide
records to show that a request received proper consideration. NOTE: A request
may not be refused because a resident fails to follow the procedure adopted by
the association, and a request need not include the words “reasonable
accommodation.”
▪
Seek only information that is needed to evaluate if a requested
accommodation/modification may be necessary because of a disability:
- If the individual’s disability
is obvious or otherwise known, and if the need for the requested
accommodation/modification is also readily apparent or known, the provider
(i.e., the condo association) may not request any additional information.
- If the disability is known or
readily apparent to the association, but the need for the
accommodation/modification is not, the association may request only information
that is necessary to evaluate the disability-related need (i.e., whether the
accommodation/modification is needed due to the disability). Such information
must be kept confidential, and it must not be shared with other persons unless
they need the information to make or assess a decision to grant or deny an
accommodation/modification request, or unless disclosure is required by law
(e.g., a court-issued subpoena requiring discloser).
- If the disability is not known
or obvious, the association may request reliable disability-related information
that: 1) is necessary to verify that the person meets the definition of being
disabled (i.e., she has a physical or mental impairment that substantially
limits one or more major life activities); 2) describes the needed
accommodation/modification, and; 3) shows the relationship between the person’s
disability and the need for the requested accommodation/modification.
Depending on the circumstances,
information verifying that the person meets the definition of disabled can
usually be provided by the individual herself (e.g., proof that an individual
under the age of 65 receives Supplemental Security Income or Social Security
Disability Insurance benefits, or a credible statement by the individual). A
doctor, 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 may also
provide verification of a disability. In most cases, a resident’s medical
records or detailed information about the nature of a person’s disability is
not necessary for this inquiry.
▪
Provide prompt responses to reasonable accommodation/modification requests as
an undue delay in responding may be deemed to be a failure to provide a
reasonable accommodation/modification.
▪
Treat each request on an individual basis.
▪
Engage in an interactive process with the person requesting an
accommodation/modification, even when the request would pose an undue burden.
- If the request is unreasonable,
it is advisable to discuss with the resident whether there is an alternative
accommodation/modification that would effectively address the requester’s
disability-related needs.
- If the request is reasonable,
but more feasible alternatives exist, the association may discuss with the
resident if she is willing to accept an alternative accommodation/modification.
However, keep in mind that the resident is not obligated to accept an
alternative suggested by the association if she believes it will not meet her
needs and her preferred accommodation/modification is reasonable.
- A failure to reach an agreement
on an accommodation/modification request is effectively a decision by the
association to not grant the request, and the resident could file a complaint
to challenge the decision with the Department of Housing & Urban
Development (HUD) or the Massachusetts Commission Against Discrimination
(MCAD). Alternatively, the resident could file suit in either federal district
court or Massachusetts Superior Court.
▪
Finally, it is recommended that when faced with a reasonable accommodation or
modification request, the association seek legal advice from its counsel to
ensure compliance with the current laws in this complex and ever-changing area.
Originally
posted February 26, 2018 on tlawmtm.com:
Janelle is an
associate in Moriarty Troyer & Malloy LLC’s litigation and real estate
departments and a REBA member. She concentrates her practice in condominium and
real estate litigation, permitting matters, and land use litigation, as well as
leasing and transactional matters.
Janelle received
her J.D. from Northeastern University School of Law where she was
Editor-in-Chief of the Northeastern University Law Review and a teaching
assistant for the property law and legal research and writing programs. During
law school and prior to joining Moriarty Troyer & Malloy LLC, Janelle was a
federal judicial intern for the Honorable Denise J. Casper, U.S. District
Court, District of Massachusetts.
