Every claim by a resident that he or she needs a special accommodation in connection with a condominium’s rules, policies, or services due to an alleged handicap – whether physical or emotional – must be taken very seriously. The failure to respond appropriately in these situations may expose even well-intentioned boards and their property managers to the harsh consequences of applicable state or federalanti-discrimination laws, or both.
Let me begin at the end to make the point. A first violation of the federal Fair Housing Amendments Act (the “Act”) may result in a fine of up to $11,000. Subsequent violations may result in fines ranging between $27,500 and $55,000 under the federal statute – not including a claimant’s actual damages. Violations ofMassachusetts’ anti-discrimination laws may also result in similarly harsh consequences – or even worse. And reported settlements in these types of cases have run into the hundreds of thousands of dollars. So, this is very serious stuff.
The thrust of the federal Act is fairly straightforward. The Act makes it unlawfulfor condominium association boards (and other property owners) to refuse “to make reasonable accommodations in rules, policies, practices, or services, when such accommodation may be necessary to afford… person(s) [with disabilities] equal opportunity to use and enjoy a dwelling” upon request.
The first criterion of the Act is that the person requesting a reasonable accommodation in an association’s rules must demonstrate both a bona fide disability and a nexus to the requested modification in rule enforcement. The term “disability” under the Act means either a physical or mental impairment that substantially limits one or more major life activities. Clearly, a person confined to a wheelchair almost certainly fits the definition. However, an emotionally-challenged resident’s eligibilityfor modification of an association’s rules is typically far less obvious.
“Less Obvious” Handicaps
The 2008 Joint Statement of HUD and the Department of Justice provides the roadmap for association boards to follow in these “less obvious” cases. The Joint Statement indicates that an association board “may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability, (2) describes the needed modification, and (3) shows the relationship between the person’s disabilityand the need for the requested modification.” Although a medical doctor’s certification as to the above issues is preferable, a medical doctor’s certification is not required. Certifications by non-medical service providers such as social workers and other similarly reliable third parties who have reason to know about the individual’s disability are permissible under the federal Act.
The second criterion of the Act is that the requested modification in enforcement of an association’s rules must be “reasonable.” There are no bright line tests to establish “reasonableness” – unfortunately so. Rather, the balancing test typically boils down to weighing the costs and other hardships to the association in meeting the request against the requesting resident’sneed for the accommodation in order to use and enjoy the condominium.
The most common fact pattern in my experience seems to involve an emotionally-challenged resident’s request for an exception to a condominium’s “no-pet” rule. Thus, it is vitally important to note that several courts have explicitly stated that an exception to a “no-pet” policy or rule would qualify as a “reasonable accommodation” under the Act. And it is equallyimportant for association boards to note that the requirements of both the federal Act and its Massachusetts counterpart probably trump an association’s no-pet restriction when a resident demonstrates both a bona fide emotional disability and the required verifiable basis by which to conclude that an exception to the no-pet restriction is needed for the disabled resident to use and enjoy the condominium.
So, how should a condominium board handle a resident’s request for a modification in enforcement of the association’s constituent document restrictions, such as keeping a pet?
First and foremost, take the request seriously – and do not assume that the requesting resident is simply “faking it.” But, remember that an actual request for a reasonable accommodation is required under the Act. And the law is violated only by refusing to make a reasonable accommodation upon request. So, do not assume that a request will be forthcoming at somefuture time – but, act both responsibly and decisively upon receipt of an actual request.
Call Your Attorney
At the risk of sounding self-serving, this is probably one of those situations where the board should contact its attorneys promptly upon receipt of a request for a modification in rules enforcement from an emotionally-challenged (or other handicapped) resident. Experienced and knowledgeable lawyers can assist the board greatly in processing the request within the parameters of the law.
This usually begins with a reply acknowledgement of the resident’s request, along with suitable forms for the requesting resident’s doctor or other professional service provider to complete, certifying the resident’s disability and both the need for the requested modification in rules enforcement and the nexus to the disability. At that point, the board should be in a position to make an informed decision – keeping in mind that it must make a reasonable accommodation in enforcing association restrictions (i.e., the no-pet example) upon receipt of a demonstrable, bona fide request from a resident who is handicapped – either physically or emotionally– under both federal and state laws.
Finally, experienced lawyers know that it is better to be safe now than sorry later in these types of elusive cases involving emotionally-challenged residents’ requests. If there is any real doubt as to whether theboard should grant a resident’s request after considering all of the facts, then the board should seriously consider asking its attorney whether he or she suggests seeking declaratory relief from an appropriate court. This involves filing a complaint together with supporting documents setting out both the facts and the law – and asking the court to instruct the board as to what it should do given the particular facts – a far better approach than running the risk of violating the anti-discrimination laws.
Joe Saurino is an associate with Marcus, Errico, Emmer & Brooks, PC, in Braintree, Massachusetts.