Accommodation or Modification Under the FHA
What do they mean and how will you know how to answer a request? (Part 2) By Matt Drewes, Thomsen & Nybeck, P.A., Attorneys
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s the parenthetical in the title suggests, this article continues the discussion of a difficult, yet sensitive and virtually unavoidable issue for many community associations: the Fair Housing Act. For important information about the scope and purpose of the FHA, and some initial steps to reducing the likelihood that you violate it, please review part 1 of this article, which appeared in the May/ June issue of Minnesota Community Living. The previous article began with steps 1 through 3 of how to manage a potential need to accommodate or perform a modification for a disabled person in your homeowners association. The list continues at item 4. 4. Determine whether the request is “reasonable.” Reasonableness is also a fact-intensive question. The analysis for accommodations differs from that for modifications somewhat because accommodations must be made at the HOA’s expense, while modifications are to be paid for by the requesting party. a. What’s a “reasonable” accommodation? An accommodation is not reasonable if it fundamentally alters the operations of the HOA or if it were to impose undue financial or administrative burdens. Factors for an accommodation include the cost versus the available resources of the party being asked to make the accommodation, the benefit to the disabled person, and the possibility that there may be reasonably effective alternatives. An HOA may not deny a person a reasonable accommodation solely because doing so carries some monetary cost, however, and it may not charge a person an additional fee or require a deposit in connection with the accommodation. For example, certain parking accommodations may require repainting parking spaces, creating curb cuts, or other expendi18
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tures. Or, if a hearing-impaired owner wishes to attend board or member meetings and understand what is being discussed, he or she likely would be entitled to have the HOA pay for the interpreter. The HOA ordinarily may not pass any part of these costs along to the requesting party, barring some hardship on the HOA. An accommodation is not necessary where the person being accommodated would pose a “direct threat” to the health or property of others, unless the accommodation itself would significantly reduce that threat. Thus, an individual with a condition that makes him violent, but which is treatable, might be entitled to remain, but perhaps only on the condition of that he proves he will reliably receive the assistance needed to ensure he will not be a threat to others. The HOA is not responsible to provide this treatment, but it may have to accommodate routine access by an aide or health professional so as not to interfere with it. In a more conventional example, a federal court approved a stipulation where an owner was permitted to keep his dog as a service animal, but he was required to clean up after the dog, and to repair damage it might cause. b. What’s a “reasonable” modification? A modification must be allowed if it is reasonably necessary to enable a disabled resident (or person associated with them) full enjoyment of the dwelling. When modifications are appropriate, an HOA often may apply its general guidelines and architectural principals (color, location, materials), or even propose another option if, objectively, the alternative would be less burdensome to the HOA and yet would still meet the needs of the requester (e.g., installing a wheelchair lift rather than a ramp), but the disabled person will generally be viewed as the most reliable source of information about the person’s needs. The HOA is likely to have to pay to maintain the modification unless the installing party is the only one who will make use
of it, so some input into the quality of the materials makes sense as well, but a disabled person may not be required to pay any increased cost to use an alternative option if the option she requested was reasonable. As a result, the HOA may wish to ask that any request be accompanied by reasonably complete plans showing the location and design of a particular modification. It is also reasonable to require that a qualified, licensed, and bonded contractor be used, and that the work complies with applicable code and workmanship standards. However, HOAs may not require that a particular contractor do the work, and the HOA may not require a disabled person to provide a security deposit or pay for increased liability insurance resulting from the modification. This suggests that an indemnification or hold-harmless agreement may not be permissible conditions to allowing an otherwise reasonable modification, either. 5. Negotiate in good faith. This step may appear obvious, but many overlook it. If you receive sufficient information to make a decision, unless you plan to consent to all aspects of the request, you should offer to discuss the request and why it was made rather than simply denying it. If there is insufficient information to make a decision, request the information formally, courteously, in writing (preferably with proof of delivery), and ask for the objectively reasonable information a party is entitled to have to make the decision. If both parties believe the other is working in good faith toward a resolution, they’re likely to find one that works. And, if attempts to open this dialog are unsuccessful, the party who made the effort has an even stronger case if HUD should later get involved. In fact, where a party received a letter from a resident stating that he required a service dog, the court was persuaded that the request was not legitimate because the housing provider twice asked for more information and