HOAs must make accommodations for the disabled

NOTE: This week I’m turning over my column to Gayle A. Kern and Veronica A. Carter of Kern & Associates.

Q:

A: Homeowners association board members and association leaders must be aware of the restrictions imposed by the Americans With Disabilities Act (ADA) and the Fair Housing Act (FHA), both of which address service and assistance animals and reasonable accommodations.

The ADA prohibits discrimination against persons with disabilities in places of public accommodation. The ADA’s applicability to associations is limited to the extent the association holds its facilities open to the general public and would not apply if an association’s facilities or common areas are reserved for the use of association members.

Under the ADA, public entities shall modify policies, procedures and practices to permit the use of a “service animal” by a person with a disability. See 28 C.F.R. § 35.136. The ADA limits “service animals” to dogs that are trained to do work or perform tasks to assist an individual with a disability. See 28 C.F.R. § 35.104. The definition specifically excludes animals used for the provision of “emotional support, well-being, comfort or companionship.” However, reasonable modifications shall be made for miniature horses when they are trained to perform tasks for the benefit of the disabled individual and are in control of the handler. See 28 C.F.R. § 35.136(i); See also NRS 651.075(5).

In contrast, the FHA applies to all housing providers, including homeowners or condominium associations, regardless of whether facilities are held open to the public. The FHA makes it unlawful to discriminate against individuals with a handicap in the provision of services or facilities in connection with a dwelling. See 42 U.S.C. § 3604(f). Discrimination in violation of the FHA includes the refusal to make reasonable accommodations or modifications when such accommodations or modifications are necessary for a handicapped individual to fully enjoy the use of his or her residence.

The FHA does not use the limited ADA definition of “service animal.” Rather, under the FHA, upon request, an association shall make reasonable accommodations for an individual who has a disabilityrelated need for a comfort, companion or assistance animal, whether or not the animal is specifically trained. See Fair Hous. of the Dakotas, Inc. v. Goldmark Prop. Mgmt., 778 F. Supp. 2d 1028, 1036 (D.N.D. 2011).

Under the FHA, a reasonable accommodation for a service or assistance animal is required when the individual has a handicap (a physical or mental impairment that substantially limits one or more life activities) and the animal performs tasks or services necessary to assist the individual with their handicap. See 42 U.S.C. § 3602(h). If the handicap is not apparent, the association may require reliable documentation of the alleged handicap and may make inquiry as to whether the alleged handicap is a mental or physical impairment that substantially limits one or more major life activities. See Lucas v. Riverside Park Condos. Unit Owners Ass’n, 2009 ND 217, 776 N.W.2d 801 (N.D. 2009) (because of the “conclusory and ambiguous nature” of the documents provided to demonstrate the individual’s handicap, the association was justified in seeking additional information regarding the alleged handicap).

The reasonable accommodation must be “necessary” to provide the handicapped individual “equal opportunity to use and enjoy a dwelling.” See 42 USCS § 3604(f)(3) (B). An accommodation is necessary when it directly ameliorates the effects of the handicap. See Bhogaita v. Altamonte Heights Condo. Ass’n, 765 F.3d 1277 (11th Cir. Fla. 2014).

In Bhogaita, assertions from Bhogaita’s treating psychiatrist that his dog assisted him “in coping with his disability” and “ameliorated” his psychiatric symptoms, and that without the assistance of the dog, his “social interactions would be so overwhelming that he would be unable to perform any kind of work” were sufficient to demonstrate that the dog was necessary as a reasonable accommodation.

The accommodation should not go beyond addressing the needs of the handicapped individual. The FHA does not require accommodations that increase a benefit to a handicapped individual outside of the handicap or that provide a benefit unrelated to the handicap that other residents do not enjoy. See Schwarz v. City of Treasure Island, 544 F.3d 1201, (11th Cir. Fla. 2008).

The accommodation must be reasonable and not impose an undue financial hardship or administrative burden. While accommodating service or assistance animals may increase costs associated with maintenance of the units, such costs are generally insufficient to refuse an accommodation to a pet restrictive policy. See Fair Hous. of the Dakotas, Inc. v. Goldmark Prop. Mgmt., 778 F. Supp. 2d 1028 (D.N.D. 2011). Associations may not require payment of extra fees as a condition to approval.

Associations must consider these factors when evaluating requests for reasonable accommodations, though it is always advisable to contact the association’s legal counsel before taking action on a reasonable accommodation request for a service or assistance animal.