FAIR HOUSING ACT (FHA)
The Fair Housing Act or FHA can be confusing and problematic for condominium and other housing associations. The law prohibits “discrimination against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap.” In furtherance of this goal, a housing provider cannot refuse “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”
In plain English, associations have to grant reasonable requests to accommodate a disability. The key word is reasonable. To prevail on an FHA claim, a plaintiff must establish that “(1) he is disabled or handicapped within the meaning of the FHA, (2) he requested a reasonable accommodation, (3) such accommodation was necessary to afford him an opportunity to use and enjoy his dwelling, and (4) the defendants refused to make the requested accommodation.”
Once a homeowner or renter requests a reasonable accommodation, the association has an opportunity to conduct a meaningful review of the request. The extent of the review is often dictated by the nature of the disability and the request. In cases where a disability is not readily apparent, it could be appropriate to require the opinion of a physician who is knowledgeable about the disability, and the manner in which the requested accommodation can ameliorate the effects of the disability. Where a disability is readily apparent, an association can only request information that is necessary to evaluate the disability-related need for the accommodation. In such cases, an association can only request information that is (1) necessary to verify that the person meets the law’s definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.
Once an association has established that a person meets the definition of disability, any additional request for documentation should seek only the information that is necessary to evaluate whether the reasonable accommodation is truly needed because of the disability.
The Department of Housing and Urban Development (HUD) gives the following example of information that can be requested: A housing provider has a “no pets” policy. A tenant who is deaf requests that the housing provider allow him to keep a dog in his unit as a reasonable accommodation. The tenant 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 housing provider must make an exception to its “no pets” policy to accommodate this tenant.
Question also often arise regarding the amount of time that an association can take to make a decision following a request for an accommodation. Where an association delays an unreasonable amount of time and/or requests additional and unnecessary information, a constructive denial may be deemed to have occurred. According to HUD, a housing provider has an obligation to provide a prompt response to accommodation requests. An undue delay in responding to a request may be construed as a refusal to provide a reasonable accommodation.
There are a number of defenses available to housing providers, when sued for alleged violation of the Fair Housing Act, including that no disability (as defined by the law) is involved, that the requested accommodation is not the most effective or least onerous method to assist with the disability, or that the requesting tenant/owner is not willing to pay for the accommodation (for example, ramps in common areas have to be paid for by the requesting party). The specific defenses available will of course depend on the facts of each case.
If your housing association has been sued for violation of the FHA, contact us for a free consult.