As the population ages, homeowner association boards and property managers are more frequently dealing with requests from condominium and cooperative owners and residents to accommodate a handicap or disability by adding to or changing the common areas in some way. These requests vary from the relatively simple and inexpensive, such as leveling an uneven step to allow wheelchair access or installing a handrail for support, to the more “politically” complicated, such as providing a handicapped parking space closer to a front or rear door, allowing a washer/dryer in a unit when washers and dryers are prohibited in all other units; or allowing a pet when pets are prohibited.
Requests Can be Expensive
Other requests may be quite expensive, such as installing a stair chair in a commonhallway, or installing another secondary means of egress from a unit when the existing one is not easily accessible due to a disability.
Oftentimes, the initial response of the board or property manager is to deny the request because it seems to be unreasonable, the cost is prohibitive, or the unit owner’s disability is not readily apparent. An initial, inappropriate denial is a mistakewhich may lead to extensive litigation for the association, and in some cases, monetary damages.
The legally correct (and politically wise) initial response from a board to an oral request for an accommodation is, “Yes, the board will reasonably accommodate your disability, but we need to better understand your request and the reasons why you are making the request. Please submit the request in writing, and explainwhy the accommodation is necessary.”
It is important to note that if a disability is known or apparent to the board, it maynot request further information about the requester’s disability; a request for further information is permitted only if necessary to evaluate the disability-related need for the accommodation. If the request for accommodation is made in writing, the response should state that “the board will reasonably accommodate the disability, but investigation of the request is required.”
A board’s initial, unreasonable denial of a request for an accommodation may constitute a violation of the Federal Fair Housing Act (the “Act”), or a violation of similar state laws such as Massachusetts General Laws, Chapter 151B. Under the Fair Housing Act, the board, as a “housing provider,” must make reasonable accommodations for handicapped persons to afford them equal opportunity to use and enjoy a dwelling, including a unit in a condominium or cooperative. Further, an undue delay in responding to a reasonable accommodation request may be considereda failure to provide a reasonable accommodation, thus constituting a violation of the act.
Undue Financial Strain Considered
A reasonable accommodation is one that permits handicapped persons an opportunity to freely use and enjoy the premises. However, it is not reasonable if it causes an undue financial or administrative burden on the provider, or if the request would require a fundamental alteration in the nature of the housing provider’s program.
The costs and burden on the provider may be considered in determining whetheran accommodation is reasonable, as well as any other alternative accommodations that may be available.
Each accommodation request must be judged on its own merits; the courts ultimately have the authority to determine if an accommodation is reasonable on a case-by-case basis. The burden is initially on the requester to demonstrate that the individual is unable to use and enjoy the premises without the accommodation.
For example, the law requires that the requester demonstrate a physical or mental impairment that limits one or more of his or her major life activities such as breathing, walking, working, carrying, seeing, hearing, or eating, etc. and relate the proposed accommodation to the disability. If the requester succeeds in doing so, then the burden shifts to the provider to demonstrate a legitimate, nondiscriminatory reason for denying the accommodation. Such reasons may include cost, financial resources of the provider, and the availability of alternative accommodations which can meet the requester’s needs.
As with any legal issue, there are subtleties and complexities that impact each case. Who can decide whether a proposedalternative accommodation is reasonable, the requester or provider? When is it appropriate to challenge a requester’s disability? When does the violation of the Act occur, and can it be cured by subsequent good faith efforts by the provider?
Certainly, both the individual who is requesting the accommodation and the board tasked with providing the accommodation have much to lose in not proceeding reasonably in creating an acceptable accommodation. Given the competing financial interests and politics within a condominium association, compromise and diplomacy are not always easy to achieve, nor in some cases are compromise and diplomacy warranted.
It is important for boards to know that in a number of cases, courts have awarded damages to individuals when discriminatory housing practices have been found. These damages have included out-of-pocket expenses, moving expenses, temporary lodging expenses, medical expenses, and even general damages for emotional distress. Punitive damages have also been awarded where the provider’s conduct has been judged willful, malicious, or in reckless disregard of the requester’s rights.
When faced with such a request, it is in a board’s best interest to immediately fulfill its legal obligations to the requester. The board must conduct an investigation of the reasonableness of the accommodation, its costs, and possible alternatives. The Board should discuss the request with a knowledgeable, experienced attorney before takingany precipitous steps or making any uninformed responses to the requester.
An open dialogue between the housing provider and the individual requesting an accommodation, unguided by knowledgeable counsel, can be a trap for the unwary.
Michael W. Merrill is a principal of Merrill & McGeary in Boston, Massachusetts.