Current Trends in the Fair Housing Act

Increasingly, community associations are faced with residents’ requests for both “accommodations” and “modifications” under the Fair Housing Act. Title VIII of the Civil Rights Act of 1968, a/k/a The Fair Housing Amendments Act, located at 42 U.S.C. §3601 et. seq. (1968), was enacted by Congress as a means of preventing housing discrimination based upon race, color, religion, sex and national origin. In 1988, Congress enacted the Fair Housing Amendments Act (FHAA) codified at 42 U.S.C. §3602 (1988), which expanded the scope of the Act to prevent discrimination based upon “familial status” and “handicap”.

One of the fundamental policy considerations in expanding the FHAA to include handicapped persons was to prohibit practices that restrict the choices of individuals with disabilities to live where they wish or that discourage or obstruct those choices in a community, neighborhood or development. The FHAA requires community associations, as a “housing provider”, to make reasonable accommodations to an association’s rules, policies, practices or services and allow modifications to the residential premises or common property. The single most requested “accommodation” is an exception to pet restrictions. There are other accommodation requests frequently encountered such as providing a closer assigned/handicap parking space, making exceptions to rules requiring packages to be delivered to the office or that rent be paid in person and requests for “caretakers.”

“Modification” requests involve desired changes to the interior or exterior of a dwelling and/or the common property. Some of the most prevalent modification requests include adding grab bars to a shower, installing a chair lift, installing an elevator, or installing a pool lift, to name a few.

How does a community association know when it is required to grant a requested accommodation or modification? The first step is to determine if the requesting party is handicapped as that term is defined under the FHAA and your State’s Fair Housing Act.

Definition of “handicap”

The definition of what constitutes a “handicap” is found at 42 U.S.C. 3602(h), which states, “‘[h]andicap’ means, with respect to a person-(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such impairment, or (3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance …. ”

“Major life activities” include such things as seeing, hearing, walking, talking, breathing, resting, sleeping, caring for oneself, reading, learning, concentrating, and working. This is not an all-inclusive list. “Substantially limits” suggests a person is unable to perform at least one of these activities in the same manner as an average person in the general population would be able to and/or the ability to perform the activity is significantly restricted. This determination is extremely fact specific and must be evaluated on a case-by-case basis. What might be considered a disability in one case, may not be considered a disability in another.

The Code of Federal Regulations, at 24 C.F.R. 100.201, defines the term handicap and expressly provides certain conditions that are considered a handicap, and some that are not, as a matter of law.

Handicap means, with respect to a person, a physical or mental impairment which substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment. This term does not include current, illegal use of or addiction to a controlled substance. For purposes of this part, an individual shall not be considered to have a handicap solely because that individual is a transvestite. As used in this definition:

(a) Physical or mental impairment includes:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or

(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.

In addition, over the years, the courts have found numerous medical conditions (whether physical or mental) to be a disability entitled to protection under the FHAA. See Burgess v. Alameda Housing Authority, 98 Fed. Appx. 603, 606 (9th Cir. 2004) (finding that allegations that plaintiff is “often sick” and at times “unable to do much of anything” sufficient to qualify her as disabled under the FHAA); Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46-48 (2d Cir. 2002) (recovering alcoholics residing in special supportive groups are held to be “handicapped” under the FHAA); Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1041, 1045, (6th Cir. 2001) (holding tenant suffering from schizophrenia and depression has a “serious mental illness” and therefore, considered to be covered by the FHAA); Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 599 (4th Cir. 1997) (holding people suffering from Alzheimer’s and other forms of dementia considered handicapped under the FHAA); Radecki v. Joura, 114 F.3d 115, 116, (8th Cir. 1997) (concluding depression can be a handicap pursuant to the FHAA); Human Resource Research and Management Group, Inc. v. County of Suffolk, 687 F. Supp. 2d 237, 252-53 (E.D. NY. 2010) (stating that individuals recovering from alcoholism, drug addiction, or other substance abuse are disabled under the FHAA); Boston Housing Authority v. Bridgewaters, 898 N.E.2d 848, 857 (2009) (determining that individual with mental impairment substantially limiting his ability to work was disabled under the FHAA); Elmowitz v. Executive Towers at Lido, LLC, 571 F. Supp. 2d 370, 376-77 (E.D. NY. 2008) (finding plaintiff that suffers from bipolar disorder, depression, and social anxiety which impaired his ability to work was sufficient to show he is disabled under the FHAA); Dr. Gertrude A. Barber Center, Inc. v. Peters Tp., 273 F. Supp. 2d 643, 651 (WD. Pa. 2003) (stating that mentally retarded individuals qualify as “handicapped” under the FHAA); ReMed Recovery Care Centers v. Township of Willistown, Chester County, Pa., 36 F. Supp. 2d 676, 683 (E.D. Pa. 1999) (holding brain-injured persons qualify as handicapped under the FHAA); US. v. Massachusetts Indus. Finance Agency, 910 F. Supp. 21, 26, (D. Mass. 1996) (concluding that emotionally disturbed adolescents may, in certain situations, qualify as handicapped under the FHAA); Cleveland v. Policy Management Systems Corp., 526 US. 795, 797, 119 S. Ct. 1597, 143 L. Ed. 2d 966, (1999) (suggesting that persons who qualify for Social Security Disability Insurance benefits would generally meet the ADA’s definition of disability); Dadian v. Village of Wilmette, 269 F.3d 831, 837-38 (7th Cir. 2001) (finding that osteoporosis that substantially limits ability to walk is a handicap for purposes of the FHAA); Shapiro v. Cadman Towers, Inc., 844 F. Supp. 116, 118, (E.D. NY 1994), order aff’d, 51F.3d328, (2d Cir. 1995) (concluding that multiple sclerosis causing intermittent limitation of motor skills and other symptoms is a handicap under the FHAA); Trovato v. City of Manchester, N.H, 992 F. Supp. 493, 495 (D.NH. 1997) (holding muscular dystrophy that substantially limits ability to walk is a handicap pursuant to the FHAA). See Housing Discrimination Law and Litigation Database, Robert G. Schwemm, Part C.; The Federal Fair Housing Act: Substantive Coverage Chapter JJD. Handicap/Disability Discrimination (June 2011).

In contrast, the courts have held the following medical conditions, at least in these particular circumstances, did not rise to the level of a handicap under the FHAA: Wells v. Willow Lake Estates, Inc., 390 Fed. Appx. 956, 958 (11th Cir. 2010) (holding that plaintiff who merely claimed he “cannot bend or move easily” did not adequately plead that he is a handicapped individual under the FHAA); Jobst v. Camelot Village Ass’n, Inc., 94 Fed. Appx. 356, 357 (7th Cir. 2004) (receiving social security benefits does not prove that plaintiff is disabled under the FHAA); Gabbard v. Linn-Benton Housing Authority, 219 F. Supp. 2d 1130, 1133- 1141 (D. Or. 2002) (rejecting plaintiffs’ disability claims based on allegations they suffered from multiple chemical sensitivity syndrome) (ADA case); Cohen v. Township of Cheltenham, Pennsylvania, 174 F. Supp. 2d 307, 324-30 (E.D. Pa. 2001) (finding testimony about problems that abused children generally have, fails to establish that the individual abused children in this case had such impairments so as to qualify as “handicapped”); De La Torres v. Bolger, 781 F.2d 1134 (Tex. CA. 1986) (explaining that under the Rehabilitation Act of 1973,” left­handedness” is not a disability).

Requests can be made Orally or in Writing

A request for a reasonable accommodation or modification can be made orally or in writing. The Joint Statement Of The Department Of Housing And Urban Development And The Department Of Justice, May 17, 2004, Reasonable Accommodations Under The Fair Housing Act Question and Answer 12, explains that:

[A] resident or an applicant for housing makes a reasonable accommodation request whenever she makes clear to the housing provider that she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of her disability…. An applicant or resident is not entitled to receive a reasonable accommodation unless she requests one. However, the Fair Housing Act does not require that a request be made in a particular manner or at a particular time. A person with a disability need not personally make the reasonable accommodation request; the request can be made by a family member or someone else who is acting on her behalf. An individual making a reasonable accommodation request does not need to mention the Act or use the words “reasonable accommodation.” However, the requester must make the request in a manner that a reasonable person would understand to be a request for an exception, change, or adjustment to a rule, policy, practice, or service because of a disability…. However, housing providers must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the provider’s preferred forms or procedures for making such requests.

There is no requirement in the law that a formal written request be made prior to triggering a community association’s responsibility to investigate the request in a timely manner. It should be noted that a delay or failure to respond to a request can be considered a constructive denial.

Documentation Supporting the need for the Request

Associations are limited in the information they can request from a person requesting a disability or handicap related accommodation or modification. See generally Prescription Pets®, Gary A. Poliakoff, JD. and JoAnn Nesta Burnett, Esq., Common Ground, pg. 28 (Jan/Feb 2008). If the requesting party’s disability is visible, such as the need for a wheelchair, walker or cane, the association should not request any medical information concerning the disability, at least if the requested accommodation or modification is reasonably related to the obvious handicap. The Association must determine if the requested accommodation or modification will ameliorate the effects of the disability. If the requesting party is using a wheelchair and requests to install a ramp in place of the stairs leading to his unit, the nexus is also obvious and the request should be granted. If the requesting party uses a wheelchair and requests to install a visual alerting system in place of a door bell, the Association may inquire as to the nexus. Since the use of a visual alerting system does not appear to be related to the use of a wheelchair, the Association is entitled to determine how the system will ameliorate the effects of his disability requiring the use of a wheelchair. If the disability is not visible, as is the case with most mental disabilities, the Association can require documentation stating that the person suffers from a physical or mental disability, which major life activities are substantially impaired as a result, and how the requested accommodation or modification will ameliorate the effects of the disability. Id.

There are also situations in which an association may be “skeptical” of a requesting party’s need for an accommodation or modification. For example, a unit owner claims to be physically impaired and requires an elevator to get to and from her second floor unit which currently only has stairs. The person is not visibly disabled and leads an extremely active lifestyle, including playing tennis and golf, jogging five miles a day, and coordinating and attending ballroom dancing classes on the property. The requesting party provides a “physician’s statement” from a psychiatrist who shares the same last name with the requesting party, and who claims she suffers from a physically disabling condition. The association might be skeptical of the need for such an accommodation and the “physician” who wrote the statement. Based upon fairly recent case law such as Hawn v. Shoreline Towers Phase I Condo. Ass ‘n, Inc., 2009 WL 691378 (N.D. Fla. 2009) aff’d at 347 Fed. Appx. 464 (11th Cir 2009) (holding it is reasonable to require the opinion of a physician who is knowledgeable about the type of alleged disability), where an association is “skeptical” of the disability, an association, in certain cases, .may request additional medical documentation such as medical notes in order to conduct a meaningful review of the request. Lucas v. Riverside Park Condo. Unit Owners Ass’n., 776 N.W.2d 801 (N.D. 2009) (citing Hawn for the same proposition).

Notwithstanding the holding in Hawn, HUD recently filed a discrimination claim against The Philadelphian Owners’ Association (POA) concerning its process for evaluating requests for accommodation or service animals. In this new charge HUD contends that the POA required overly burdensome and invasive medical documentation before requests for accommodation would be considered. HUD also alleged that POA severely limited access to the complex’s facilities for residents accompanied by assistance animals and failed to address several instances of harassment of residents requiring assistance animals. The charge alleges that the Association’s requests for verification are improper and illegal. The charge specifically says:

Respondent POA’s pet policies discriminate against persons with disabilities in need of an assistance animal in many ways. For example, persons with disabilities who use an assistance animal may not enter the following areas when accompanied by their assistance animal: passenger elevators, lobby, lobby sitting rooms, library, art room, social rooms, swimming pool areas, fitness rooms, library, mailroom, common areas, management office or laundry room. In addition to its denials of valid reasonable accommodation requests, Respondent POA’s pet policies seek private medical information from a resident requesting an accommodation, to which it is not entitled.

It is unknown whether POA will be liable for damages, attorney’s fees and/or fines. The charge also conflicts with Hawn where a board was entitled to request verification of the requesting party’s disability and need for the accommodation; but the Hawn case did not involve claims that the association facilitated a hostile environment for persons with disabilities by failing to stop intimidation and harassment by other residents. Along the same lines, it appears the charge of discrimination against POA confers a unique duty upon the association to prevent others from intimidating and harassing the requesting party. This seems to extend a community association’s duty into areas that traditionally are, and should be, left to the individuals involved.

It is extremely important for community associations to be cognizant of the requirement that an association is required to engage in the “interactive process” which means that once a request for a reasonable accommodation or modification is received, the association must request appropriate information that will allow it to conduct a meaningful review of the request. The association must also keep the lines of communication open to obtain this information. As the Court explained in Douglas v. Kriegsfeld Corp. 884 A.2d 1109 (D.C. 2005), “[a]lthough neither statutory language in the Fair Housing Act nor its implementing regulations expressly require an “interactive process” for resolving requests for reasonable accommodations, several courts have indicated that the Act’s statutory scheme inherently imposes such a requirement.” See Jankowski Lee & Assocs. v. Cisneros, 91 F .3d 891, 895 (7th Cir. 1996) (if landlord is “skeptical of’ tenant’s alleged disability or landlord’s ability to provide accommodation, “it is incumbent upon [ ] landlord to request documentation or open a dialogue”); Jacobs v. Concord Village Condo. X Ass’n, Inc., 2004 WL 741384, at 2, (S.D. Fla. 2004); Armant v. Chat-Ro Co., L.L.C., WL 1092838, at 2 (E.D. La. Aug. 1, 2000) (quoting Jankowski Lee &

Assocs. and holding that once apprised of possible handicap, landlord has duty to inquire or investigate further); Auburn Woods I Homeowners Ass’n. v. Fair Employment & Haus. Comm’n., 18 Cal. Rptr. 3d 669, 683 (2001) (quoting Jankowski Lee & Assocs. and stating that obligation to “open a dialogue” with party requesting reasonable accommodation is part of interactive process in which each party seeks and shares information).

Generally, if the requesting party is able to establish a disability necessitating the requested accommodation or modification, the request should be granted. There are exceptions for modifications or accommodations that impose an undue financial or administrative burden upon the housing provider or fundamentally change the nature of the housing which can be considered “unreasonable.” The Joint Statement Of The Department Of Housing And Urban Development And The Department Of Justice, May 17, 2004, Reasonable Accommodations Under The Fair Housing Act Question and Answer 7.

Establishing a Prima Facie case of Discrimination

If a community association fails to grant an appropriate request for an accommodation or modification, delays in responding to such a request, denies a request based upon the person’s handicap or disability (or other protected class), the association will likely be defending a HUD complaint and/or a discrimination lawsuit. To prevail on a discrimination claim, the plaintiff must establish (1) that he or she is disabled or handicapped within the meaning of the FHA, and that the defendants knew or should have known of that fact; (2) that the defendants knew that an accommodation or modification was necessary to afford him or her equal opportunity to use and enjoy the dwelling; (3) that such an accommodation or modification is reasonable; and ( 4) that the defendant refused to make the requested accommodation or permit the requested modification. See generally Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218-19 (I Ith Cir. 2008); see also United States v. California Mobile Home Park Management Co., 107 F.3d 1374, 1380 (9th Cir. 1997); Jacobs v. Concord Village Condominium X Ass’n, Inc., 2004 WL 741384, at 1-2 (S.D. Fla. 2004).

If the plaintiff establishes with sufficient evidence a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its action. United States v. Badgett, 976 F .2d 1176, 1178 (8th Cir. 1992). If the defendant satisfies its burden, the burden again shifts to the plaintiff to prove, by a preponderance of the evidence, the legitimate reasons advanced by the defendant are a mere pretext. Id.

Damages

Damages in these cases can range from nominal amounts for first time offenders to extremely large awards for intentional discriminatory conduct. The type and amount of damages available is dependent upon whether the case is filed in federal court or before an administrative law judge. Both forums provide for injunctive relief, such as ordering the housing provider to allow for the modifications or to change rules and policies, and actual damages, such as out-of-­pocket expenses, attorney’s fees and emotional distress. The difference is the monetary award. The court may award punitive damages in whatever amount is appropriate, whereas the ALJ can only award civil penalties, which are paid to the government, to vindicate the public interest. The amount of the civil penalties is limited by the law to $10,000 for a first offense, $25,000 for a second offense committed within a 5-year period, and $50,000 if two or more offenses have been committed within 7 years of the charge. The ALJ is not authorized to award punitive damages. Compensatory damages in court actions are unlimited.

Once a violation of the FHAA is established, a plaintiff is entitled to recover damages for humiliation, embarrassment, mental anguish, emotional distress, and loss of civil rights suffered as a result of the defendants’ discriminatory acts, as well as out-of-pocket expenses associated with the injury. See Memphis Community School Dist. v. Stachura, 477 US 299, 307, 106 S Ct. 2537, 91 L. Ed. 2d 249 (1986) (holding “compensatory damages may include not only out-of-­pocket loss and other monetary harms, but also such injuries as ‘impairment of reputation … , personal humiliation, and mental anguish and suffering”‘). Out-of­-pocket expenses can include costs associated with moving and storage, alternative housing, medical and counseling bills, lost wages, and transportation. A. Heifetz & T. Heinz, “Separating the Objective, the Subjective, and the Speculative: Assessing Compensatory Damages in Fair Housing Adjudications,” 26 J Marshall L. Rev. 3 (1992).

Punitive damages can be assessed in federal courts. Punitive damages are appropriate in cases of “reckless or callous disregard for the plaintiffs rights, [or] intentional violations of federal law …. ” US. v. Hurde/brink, 981 F.2d 916, (7th Cir. 1992). Punitive damages are commonplace in fair housing cases. Asbury v. Brougham, 866 F.2d 1276 (10th Cir. 1989), ($7,500 compensatory damages awarded, $50,000 punitive damages awarded in rental housing/race discrimination case); City of Chicago v. Matchmaker Real Est., supra, (punitive damages of $102,000 awarded in racial steering case). Often, these awards are not covered by insurance as intentional conduct is excluded.

Whether intentional discrimination claims are, or can be, covered by insurance is a highly debated issue. Historically, insurance coverage for intentional torts was not permitted as a matter of public policy. This general prohibition has been applied in some fair housing cases. However, there are cases holding that insurance may cover intentional civil rights violations. Regardless of how this question is resolved, it is clear that public policy does not bar insurance coverage of unintentional violations of the Fair Housing Act nor of respondeat superior liability (i.e., of a principal’s vicarious liability for its agent’s intentional discrimination).

In the case of Windmill Pointe Village Club Ass ‘n, Inc. v. State Farm General Insurance Co., 77 F.Supp 596 (M.D. Fla. 1991), the Plaintiffs alleged intentional discrimination claims against the condominium association for willfully and maliciously calculating to discriminate against plaintiffs on the basis of race and familial status by denying or making unavailable housing within their subdivisions to families with children. Further and despite Windmill Pointe Village’s knowledge that the proposed amendments would be of no lawful force, Windmill Pointe Village knowingly and willfully made and attempted to enforce an unauthorized amendment to the Declaration of Covenants and Restrictions which sought to preclude families with children from residing in the neighborhood.

In determining no insurance coverage existed under the condominium’s insurance policy, the court explained:

In addition to the fact that the insurance contract does not appear to cover liability for the intentional wrongdoing of the Plaintiffs, there is a strong public policy against permitting coverage for intentional misconduct. Northwestern National Casualty Company v. McNulty, 307 F.2d 432 (5th Cir. 1962) (public policy prohibited construction of the policy as covering liability for punitive damages); Industrial Sugars, Inc. v. Standard Accident Insurance Co., 338 F.2d 673 (7th Cir. 1964) (contract of insurance to indemnify person for damages resulting from his own intentional misconduct is void as against public policy). The Florida Supreme Court has also recognized that: ‘[i]t is axiomatic in the insurance industry that one should not be able to insure against one’s own intentional misconduct.’ Ranger Insurance Company v. Bal Harbour Club, Inc., 549 So.2d 1005, 1007 (Fla. 1989).

Further, Florida’s public policy specifically prohibits insurance coverage for intentional acts of discrimination. In Ranger the Florida Supreme Court held that “the public policy of Florida prohibits an insured from being indemnified for a loss resulting from an intentional act of religious discrimination,” based upon the state’s long-standing policy of opposing religious discrimination. Ranger, 549 So.2d at 1008, 1009.

Because both the State of Florida and the Federal government have a strong policy of opposing racial discrimination and discrimination based on age or familial status, the reasoning of the Florida Supreme Court in Ranger would also apply to cases such as the one sub Judice in which the discrimination is based upon race and familial status rather than religion.

The Court finds that the losses for which Plaintiffs seek indemnification are losses resulting from their own intentional acts of discrimination. Consequently, for the above reasons, Plaintiffs are not entitled to indemnification or defense by Defendant State Farm. Id. at 598-99.

See also Rosenberg Diamond Development Corp. v. Wausau Insurance Co., 326 F.Supp. 2d 472, 476-77 (S.D.N Y. 2004) (suggesting that coverage of a Fair Housing Act claim alleging intentional discrimination might violate New York state public policy).

While states such as Florida do not permit insurance coverage for these claims based upon public policy, other states do permit insurance coverage for intentional discrimination claims. This is evidenced by the “standard intentional act” exclusion provisions contained in most policies. Before assuming that intentional claims are not insurable claims, one must first determine the state and/or federal law applicable to the claim and the position the courts have taken. Further, even though a claim may not be a “covered claim” for purposes of payment of awards or judgments, in many cases, the insurance policies provide defense coverage for these claims, but usually under a reservation of rights.

Reasonable Accommodations – Service and Support Animals

The FHAA does not use or define the term “service animal” or “support animal”. The Americans with Disabilities Act, as Amended, (“ADA”) and the FHAA both seek to prevent discrimination and both statutes use the same or similar language. The ADA has been litigated far more extensively, and thus, the body of case law is far more expansive. Often times, statutory definitions and case law governing the ADA are used in interpreting the FHAA. While both the ADA and FHAA used to be very similar, the acts appear to be taking divergent paths, at least as applied to “service animals”. The former definition found in the CFR defining “service animals” under the ADA was “any animal that is individually trained to do work or perform tasks for the benefit of a person with a disability.” This definition, at least arguably, encompassed “emotional support animals”. The Department of Justice (“DOJ”) adopted new definitions effective March 2011, for purposes of implementing the ADA. The DOJ’s definition of a “service animal” currently is “any dog that is individually trained to do work or perform tasks for the benefit of a person with a disability…. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” 24 C.F.R. 36.104. Based upon the DOJ’s definition, the ADA now limits service animals to “trained” dogs, and in some cases, miniature horses, and excludes emotional support animals entirely. The effect is that in places of public accommodation, you will only find service dogs or miniature horses, unless state or local governments opt for a more expansive definition of the term “service animal”.

However, the FHAA did not follow suit and HUD expressly stated that the DOJ’s definition of “service animal” will not be applied to the FHAA. See HUD’s Memo dated February 17, 2011, from Sara K. Pratt, Deputy Assistant Secretary for Enforcement & Programs, ED to All FHEO Regional Directors and Counsel, regarding New ADA Regulations and Assistance Animals as Reasonable Accommodations Under the FHA and Section 504 of the Rehabilitation Act of 1973. HUD’s Memo states that in the FHAA context, disabled individuals may make requests for reasonable accommodations for assistance “animals” of any kind, in addition to dogs, including emotional support animals, which require no training. Herein lies the quandary, what will happen when a disabled individual has a trained monkey in his home to perform specific required motor skills, such as turning on a light switch, opening a bottle or turning a door knob — things the disabled individual can no longer do? The ADA prevents the disabled person from bringing his service monkey to a restaurant or shopping mall. A city in California addressed this issue and chose to pass an ordinance to continue to use the original definition of a service animal. See Hesperia, California Ordinance No. 2011-01; The Washington Times, Rats! Justice Department Shoos service animals, by Sue Manning, Associated Press, April 4, 2011. This ordinance allowed a woman to continue to use her two trained service rats that detect, and alert her to, severe muscle spasms. It is unlikely she will receive the same treatment outside the city of Hesperia.

The single most debated impairment is the claim that a person requires an emotional support animal to overcome a mental disability such as depression and/or anxiety. These types of impairments cannot generally be seen by the naked eye and the effects of these impairments are usually not visible either. This is a double edged sword that leads to some associations denying genuinely proper requests and also contributes to associations approving illegitimate requests to avoid potential HUD complaints and/or litigation.

As with virtually every other statutory right, there will always be people who try to take advantage of the system. All too often, a requesting party submits a “physician’s note” or “prescription” that states my patient suffers from depression and requires the presence of an emotional support animal to use and enjoy his or her dwelling. Since the note or prescription lacks the information necessary for a community association to conduct a meaningful investigation, the association’s board conducts research on the physician and his or her qualifications and determines the requesting party is the physician’s mother. The physician is a rheumatologist stating that “his patient” suffers from depression requiring an emotional support animal. The community association is skeptical of the request, not only because of the relationship between the requesting party and the physician, but also because the requesting party leads a very “active lifestyle.” When the community association board requests additional information from a treating physician who practices in the area of the alleged disability, often times, the documentation cannot or will not be produced. The requesting party may file a complaint with HUD or one of the local enforcement agencies and the community association might agree to allow the animal as part of the conciliation process to avoid the horror stories related to these types of investigations. Under these facts, the requesting party is most likely not entitled to the protections afforded under the FHAA, but the Association grants the request to avoid protracted litigation and/or fines and damages.

Compare that situation to one in which a requesting party provides a community association a letter from a psychiatrist stating that three years ago, he or she diagnosed the requesting party with disabling chronic generalized anxiety disorder and as part of the treatment he or she prescribed an emotional support animal to calm the individual and allow her to focus, sleep and breathe more easily, all of which the requesting party was unable to do. The physician has no relationship with the requesting party. The community association board sees the requesting party play tennis three times a week and determines he or she must be untruthful about the extent of the alleged disability and denies the request. The requesting party files a HUD complaint. In this case, the Association decides not to conciliate or settle and a “finding of cause” to believe discrimination has occurred is issued. In this case, the request may well have been proper.

These situations can be potential landmines for community associations. In these situations, an association should request information that will establish the mental impairment and the need for the animal as delineated in the FHAA. In those situations where the documentation does not provide the necessary information to conduct a meaningful investigation of the request or an association is truly skeptical of a request, additional information should be requested. See Hawn v. Shoreline Towers Phase I. Ass’n, Inc., 2009 WL 691378 (N.D. Fla. 2009) aff’d at 347 Fed. Appx. 464 (11th Cir 2009).

Parking Accommodations

Community associations are duty bound to avoid enforcing provisions of the declaration that have discriminatory effects and must regulate the use of the common property in a manner consistent with the FHAA. Gittleman v. Woodhaven Condo. Ass’n., Inc., 972 F.Supp. 894 (D. N.J. 1997). Gittleman requested that his condominium association provide him with an accessible parking space as a reasonable accommodation under the FHAA. The condominium association denied the request based on the condominium’s master deed, which they claimed did not grant them the authority to do so. The court found that provisions in the master deed that would compel the condominium association to violate the resident’s rights under the FHAA by refusing the request for an accommodation are unlawful and enforcement of them subjects the association to liability under the FHAA.

In Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2nd Cir. 1995), Shapiro, a tenant with a disability, requested that a parking space be made available to her immediately, rather than her being placed on the waiting list, as an accommodation for her disability. The cooperative’s Board of Directors denied the request, stating that any duty to accommodate Shapiro under the Fair Housing Act did not come into play until after she was awarded a parking space in the normal course. The Second Circuit Appellate Court held that a landlord must make all reasonable accommodations necessary to afford persons with disabilities the ability to live in their apartment meaning that landlords must take affirmative steps to alter their policies, practices and procedures so that a tenant with a disability is not denied housing opportunities. Assigning her a parking space immediately rather than forcing her to wait on a list for an undetermined amount of time is a reasonable accommodation in the policy of assigning spaces on a first come, first served basis.

Recently, in the case of Astralis Condominium Ass’n v. Secretary, U.S. Dept. of HUD, 620 F.3d 62 (Ft Cir. 2010), the Court addressed a request for reasonable accommodation to have an assigned parking space. The Court cited Puerto Rico condominium law, which provides that the transfer of common elements after the construction of a property requires the unanimous consent of the condominium owners. P.R. Laws Ann. tit. 31, § 1291i(b)(4). The association argued that without the unanimous vote of the owners, the association could not grant the request. In rejecting that argument, the court stated that the association is duty bound not to enforce a statutory provision if doing so would either cause or perpetrate unlawful discrimination, citing Gittleman v. Woodhaven Condo. Ass’n, 972 F.Supp. 894, 899 (D.NJ.1997) which enunciated a similar prohibition with regard to a discriminatory master deed provision.

In other words, to the extent that state statutes or local ordinances would undercut the FHAA’s anti-discrimination provision, the former cannot be enforced. See Trovato v. City of Manchester, NH, 992 F.Supp. 493, 498, 499 (D.N.H 1997) (finding FHAA violation and enjoining enforcement of a conflicting zoning code provision). Thus, Astralis must regulate the use of common elements in compliance with the FHAA’s anti-discrimination policies, regardless of local law.

This conclusion is buttressed by two additional considerations. First, contrary to Astralis’s importunings, the language of the FHAA itself manifests a clear congressional intent to vitiate the application of any state law that would permit discrimination based on physical handicap. See 42 US. C. § 3615 (expressly commanding that ” any law of a State … that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid”) (emphasis supplied). Second, adopting Astralis’s view would create a sinkhole that would swallow the general rule and cripple the effectiveness of the FHAA. To say that private agreements under a state’s condominium statute are capable of trumping federal anti-discrimination law verges on the ridiculous. We disavow that proposition. See, e.g., Shelley v. Kraemer, 334 US. 1, 11, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (“It is … clear that restrictions on [housing] of the sort sought to be created by the private agreements in these cases could not be squared with the requirements of the Fourteenth Amendment if imposed by state statute or local ordinance.”).

Further, in the case of Sporn v. Ocean Colony Condominium Ass’n, 173 F.Supp.2d 244 (D.NJ,2001), the Court explained that the FHAA entitles a handicapped individual to “equal opportunity” to use and enjoy a dwelling. Accordingly, “an accommodation should not ‘extend a preference to handicapped residents [relative to other residents], as opposed to affording them equal opportunity’ ” and “accommodations that go beyond affording a handicapped tenant ‘an equal opportunity to use and enjoy a dwelling’ are not required by the Act.” In this case, in response to Sporn’s requests for a handicapped parking space, the Association adopted a “Handicapped Parking Policy” in December 1999. This policy provided that “handicapped parking spaces [defined as spaces closer to the Condominium entrance] shall be provided to residents” provided that any resident seeking such a space, “trade in their deeded parking space for an Association owned space closer to the building entrance.” On its face, this policy grants the same rights to handicapped tenants as it does non-handicapped residents. In order to prevail on his discrimination claim, therefore, Mr. Sporn must demonstrate that the Association’s actions toward him individually constituted a refusal to reasonably accommodate his handicap. This he cannot do. According to his own testimony, the problems that arose between the Association and Mr. Sporn began when Sporn demanded that he be provided a handicapped space but refused to give up his non-handicapped, deeded space as required by the Handicapped Parking Policy. When asked why he needed two spaces, Sporn did not offer any explanation related to his handicap, but instead responded, “because during the summertime we couldn’t get any parking for any of our family that came down.” These comments reveal that Sporn’s request for “reasonable accommodation” was really a request for accommodation coupled with a demand for special treatment. Thus, Sporn’s refusal to accept the Association’s proposed accommodation cannot provide the basis for an FHA discrimination claim.

Another issue community associations face with regard to handicapped parking is whether the association must comply with the Americans with Disabilities Act, as Amended (“ADA”). The ADA, as well as state and local government, requires a certain number of handicapped parking spaces in places of public accommodation. In the case of Phillips v Perkiomen Crossing Homeowners Association, 12 ADD 713 (E. D. Pa. 1995), the court held that a private parking lot for residents of the community association is not a commercial facility and the association is not a private entity that qualifies as a “public accommodation” under the ADA. That is not to say that every community association is exempt by virtue of being a community association. Instead, the focus is on whether the property, or any portion, is open to the public. For example, certain hotel condominiums might be classified as public accommodations, depending on the length of the rentals and the types of services the community provides. Similarly, a community association that does not fall within the parameters of a “public accommodation” might have portions of the common property that would be considered a public accommodation. If the club house can be rented by the general public, the club house would likely be considered a public accommodation subject to the parking requirements of the ADA.

As a general rule, a community association should make parking accommodations for a requesting party that establishes a disability that requires the accommodation. With few exceptions, parking accommodation cases favor the requesting party, absent an inability to establish a disability or where a reasonable alternative is proposed.

Other Accommodations

In the case of United States v. California Mobile Home Park Management Co., 29 F.3d 1413 (9th Cir. 1994), a tenant requested that the management waive a rule that requires tenants’ guests to pay a guest fee because the tenant’s guest was a care-taker. The management company denied the request. The court found that if such a fee makes the services of a visiting home attendant unaffordable to a tenant with a disability and thus denies him/her the equal opportunity to use and enjoy the dwelling then the policy violates the FHA.

Accommodations can include a change to the term “single family residence”. In Intermountain Fair Housing Council v. Orchards at Fairview Condo. Ass ‘n, Inc., 2011 WL 162401, 11 (D. Idaho 2011) the court examined an Association’s Covenants, Conditions & Restrictions (“CC&Rs”) which expressly stated “no Unit may be used as a rooming house, group home, commercial foster home, fraternity or sorority house, or any similar type of lodging, care or treatment facility.” The court referred to 24 C.F .R. 100.SO(b )(3) which prohibits “[e]nforcing covenants or other deed, trust, or lease provisions which preclude the sale or rental of a dwelling to any person because of race, color, religion, sex, handicap, familial status, or national origin.” The court explained that HUD’s regulations on discriminatory conduct under the Fair Housing Act prohibit “enforcing covenants which preclude the sale or rental of a dwelling to any person because of   handicap.” 24 C.F.R. 100.80(b)(3) (emphasis added).

“Furthermore, the allegedly discriminatory provision in the CC & R’s is facially neutral; that is, the prohibition on group homes is not expressly related to any disability and is in fact listed among several other types of group living arrangements, including commercial foster homes, fraternity houses, sorority houses, or any similar type of lodging. Where the complained of restrictive covenant is facially neutral, the plaintiff bears the burden of showing that the covenant’s enforcement had a discriminatory effect. Martin v. Constance, 843 F.Supp. 1321, 1325-26 (E.D.Mo.1994).” Plaintiff has not alleged any facts indicating that the restrictive covenant at issue has ever been enforced.

Accordingly, enforcement of a restriction on a group home is discriminatory if the underlying reason for the prohibition is designed to preclude individuals based upon a protected class.

Reasonable Modifications Necessary to Afford Handicapped Individuals full Enjoyment of the Premises

As stated above, discrimination includes “a refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.”

These requests are investigated in the same manner described above for accommodations. The same analysis for requesting supporting documentation applies equally to modifications, as well. A person must demonstrate that he/she is handicapped – suffers from a physical or mental impairment that substantially impairs one or more major life activities and the modification will allow the person to use and enjoy the premises.

Modifications may be requested in any type of dwelling; however, in a rental situation, the landlord may reasonably condition permission for the modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, (ordinary wear and tear excepted); the renter providing a reasonable description of the proposed modifications; and the renter providing reasonable assurance that the work will be performed in a workmanlike manner with all applicable building permits being obtained. It is important to note that this condition applies only to tenants and interior modifications. There are also situations in which the interior modification will not have to be restored. If a tenant widens the doorways to provide handicapped access, the doors will not have to be restored because the modification will not affect the housing provider’s or subsequent tenant’s use or enjoyment of the premises. See 24 C.F.R. 100.203 with examples; Lincoln Realty Management Co. v. Pennsylvania Human Relations Com’n, 598 A.2d 594 (Pa. Cmwlth 1991) (finding that housing provider should have allowed tile to be removed and carpet installed; allow tenant to install washer and dryer in unit; allow tenant to install a kitchen fan and laundry room exhaust fan so long as tenant agreed to restore unit to prior condition). While this case addresses the landlord/tenant situation, an association may be faced with a request for a modification to allow an exhaust fan in a dwelling or the installation of a washer and dryer with exterior ventilation and the Association may have to permit such modifications but does not have the ability to have the dwelling the restored absent a landlord/tenant relationship.

In addition, HUD’s commentary at 42 U.S.C. § 3604(f)(3)(A) states that the person making the modifications “must seek the landlord’s approval before making modifications.” Housing providers do not have an “absolute right” to reject proposed modifications or to select or approve who will do the work, but they are entitled to secure some protection against improper modifications and faulty workmanship. Thus, according to the HUD regulations, “[a] landlord may condition permission for a modification on the renter providing a reasonable description of the proposed modification as well as reasonable assurances that the work will be done in a workmanlike manner and that any required building permits will be obtained.” 24 C.F.R. 100.203. Modifications should not be conditioned upon the requesting party agreeing to insure the modification, use of a particular person or entity to perform the work or the requesting party agreeing to indemnify the community association.

Some of the most common requests for exterior common use modifications include installing elevators, chair lifts, pool lifts, ramps, and automatic doors. These types of modifications do not have to be restored or removed at the expense of the requesting resident after the requesting resident moves, dies or is no longer disabled. However, the parties should attempt to determine if and when the modification will be removed when it is no longer necessary. Interior modifications include installing grab bars, widening doorways, lowering counters and cabinets, installing ramps, lowering door handles, and replacing carpet with tile. This list is a mere sampling of the modifications that can be requested.

Just as in Gittleman referenced above, the Association’s governing documents cannot form the basis of a denial of a request for a reasonable modification. If the Association’s documents require 75% approval to materially alter the common elements, that approval is not required to allow a disabled individual the ability to install a ramp or elevator. Further, provisions in the governing documents preventing owners from materially altering the common elements cannot prevent the installation of a pool lift.

The tenant is responsible for upkeep and maintenance of a modification that is used exclusively by her. If a modification is made to a common area that is normally maintained by the housing provider, then the housing provider is responsible for the upkeep and maintenance of the modification. If a modification is made to a common area that is not normally maintained by the housing provider, then the housing provider has no responsibility under the Fair Housing Act to maintain the modification.