Over the years, many clients have asked our office to provide guidance concerning homeowners' requests for reasonable modifications and/or accommodations under the Federal Fair Housing Amendments Act of 1988 (the "FHAA"). And, more recently, as you may have seen in the news, there is a significant increase in the use of emotional support animals ("ESAs") to assist people with managing their disabilities which has left many of our clients wondering how to comply with the law while still enforcing pet policies and other related covenants and rules.
What is the Purpose of the FHAA? What is the Difference Between a Request for a Reasonable Accommodation and a Reasonable Modification?
Under the FHAA, a housing provider (which includes a common ownership community such as a homeowners' association and/or condominium association), cannot discriminate on the basis of disability.1 Meaning, it is unlawful for a community association to refuse a request for a reasonable modification or a reasonable accommodation, if the same is necessary to allow a person with a disability full enjoyment of his/her home and the common areas of the community.
A request for a modification involves approval for making structural changes to either a dwelling or the common areas of a community association. Examples of reasonable modifications include, but are not limited to: the installation of wheel chair ramps, handrails, and signs written in braille. A reasonable accommodation, on the other hand, does not require any physical modifications but instead is a request for a community association not to enforce existing covenants and/or rules and regulations. A reasonable accommodation request may include: a change in parking space assignment, permitting an owner to have a service dog when there is a "no pet" policy, or allowing an owner to use vaporized medical cannabis, despite a prohibition of smoking.
Specifically, with respect to a request for an ESA, an owner or resident may request a reasonable accommodation in the enforcement of any covenants and/or rules and regulations which prohibits pets, limits the number of pets a person may have, or otherwise restricts pets such as a weight limit. This means, that if a disabled owner or resident makes a request for an ESA under the FHAA, the community association may be required to permit the ESA despite other provisions in the governing documents restricting the specific animal.
What Should Your Community Association Do if It Receives a Request for a Reasonable Modification or Accommodation?
If someone in your community submits a request for an alteration to community property or wishes to be exempt from a policy, such as a pet restriction, the community should first consider whether the owner is requesting a modification or accommodation under the FHAA. Requests under the FHAA do not need to be formal, and owners are not required to cite the FHAA or specifically use the terms reasonable modification or accommodation. Accordingly, unless it is apparent from the request, the first step is to determine why the request is being made and if it is for the purpose of allowing a person with a disability full enjoyment of their home and the common areas.
The FHAA defines a person with a disability as an individual with a physical or mental impairment that substantially limits one or more life activities and individuals who are regarded as having an impairment or who have a history of such an impairment. If the owner's disability is readily apparent, the Board cannot inquire into the nature and severity of the disability.
If the disability is not readily apparent, the community may request information that
- verifies the owner meets the FHAA definition of disabled,
- describes the need for the modification or accommodation, and
- shows the relationship between the person's disability and the need for the requested modification and/or accommodation. There must be a direct relationship between the disability and the requested modification or accommodation.
If the owner or resident does not meet the definition of a disabled person or if there is not a direct relationship between the disability and the requested modification or accommodation, the community association may deny the request.
Evaluating a Request for an ESA
Generally speaking, the current law on ESAs is friendly to the individual making the request for an ESA. The U.S. Department of Housing and Urban Development (HUD) is the federal agency that enforces the FHAA. HUD has issued guidelines regarding ESAs that are applicable to all housing providers, including community associations. When it comes to evaluating a request for an ESA, the analysis can be difficult because the disability is typically not apparent. The same analysis above must be applied to a request for an ESA.
The community must assess whether the person has a disability, and whether there is a disability-related need for an assistance animal, such as performing tasks or alleviating symptoms of the disability. The existence of a disability may be verified by a letter from a physician, psychiatrist, social worker, or other mental health professional or other reliable third party in a position to know about the disability. A community association may not ask the applicant to provide access to medical records or to provide detailed or extensive information or documentation of the person's physical or mental impairment.
In the context of an ESA, if the owner or resident cannot show how the animal is necessary to enjoy their home, the Board may be able to deny the request for an accommodation. If the owner or resident is disabled and the ESA provides assistance directly related to the disability, then the Board will likely need grant an exception to its existing pet policy(ies) as it applies to this owner and animal. However, a community association is under no obligation to grant a reasonable accommodation for an ESA if that animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or if the specific animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another accommodation.
Further, you should be aware that an ESA, unlike a service animal, is not limited to only a dog but can be any animal that provides assistance to the owner or resident. However, while an otherwise prohibited animal may be allowed because it is an ESA, the owner must still comply with other rules and regulations of the community association (i.e., leash laws and/or nuisance provisions).
Understanding the difference between a reasonable modification and a reasonable accommodation is important because it determines who is financially responsible for the costs of the same. The requesting owner is generally responsible for the costs of a reasonable modification, while the community usually must bear the costs of a reasonable accommodation. If an owner requests a reasonable accommodation, such as a request for an ESA, courts have ruled that a community may not be responsible for the costs of the accommodation if it poses an undue financial and administrative burden.
It is important to note that requests for reasonable modifications and accommodations under the FHA are highly fact-specific and should always be reviewed on a case by case basis. If an owner contacts you and requests a modification or accommodation, and you are unsure if you must grant the request or want guidance regarding who is financially responsible for the request, please contact our office to discuss the matter.
If you have questions regarding this issue or would like to speak to an attorney about a specific issue in your community, please do not hesitate to contact us.
1The FHA also prohibits discrimination on the basis of race, color, religion, sex, national origin, and family status.