By Karyn A. Larko, Esq.
When a Board receives any request for a reasonable accommodation, whether the request is to keep an animal prohibited under the CC&Rs, to bring a service animal into portions of the community where animals are prohibited or for some other exemption to the association’s CC&Rs or rules, the Board must make a good faith effort to consider each of the following factors when deciding whether to grant or deny the request:
- Does the requesting party have a qualifying disability?
Federal law defines a disabled person as “[a]ny person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.” Walking, talking, hearing, seeing, breathing, learning, performing manual tasks and caring for oneself fall within the purview of “major life activities.”
- Is the accommodation requested by the disabled person “reasonable”?
There are several factors to consider in determining the reasonableness of the request, including, of course, whether the Association has the power to grant the request. Another factor to consider is the cost to grant the accommodation as opposed to the benefit to be gained. If the cost to the association is minimal and the benefit to the disabled person significant, the balance is in favor of granting the accommodation.
- Is the requested accommodation “necessary”, not just convenient, to enable the disabled person to have an equal opportunity to use and enjoy his or her home or the common area facilities?
Under the Federal Fair Housing Act (“Act”), a disabled person is not entitled to an accommodation if the accommodation is merely convenient, but he or she is entitled to a reasonable accommodation if the accommodation is necessary to allow him or her the equal use and enjoyment of his or her home or the common area facilities. The purpose of the Act is to grant disabled persons “equal” not preferential use and enjoyment of their homes and the common area.
Additionally, how does a board know if the resident is really disabled – especially if the disability is not apparent?
It is important to know that a Board may not ordinarily inquire as to the nature or severity of a resident’s disability. However, in response to a request for a reasonable accommodation, the Board may generally request disability-related information only that:
- Is necessary to verify that the person meets the definition of disabled under Federal law;
- Describes the needed accommodation; and
- Shows the relationship between the resident’s disability and the need for the requested accommodation.
Having said this, if the resident’s disability is obvious, or otherwise known to the Board, and if the need for the requested accommodation is also readily apparent or known, the Board may not request any additional information.
If the resident’s disability is known or readily apparent to the Board, but the need for the accommodation is not readily apparent or known, the Board may request only the information necessary to evaluate the disability-related need for the accommodation.
If the resident’s disability is not known or readily apparent to the Board, the Board can require the resident to provide written verification of his or her disability from a health care professional. Once the Board establishes that a resident is disabled, the Board should only request the information necessary to evaluate whether the requested accommodation is needed.
Never forget that an association must keep confidential all of the information it obtains related to a resident’s disability. This information cannot be shared with the membership or any other persons unless the disclosure is required by law.
We are here to help you navigate this tricky area of the law and avoid costly claims of discrimination. …if in doubt, call your legal counsel!