It seems there has been a recent surge in the number of news stories about travelers bringing exotic animals and other livestock onto airplanes as emotional support animals. In fact, the popularity of animals on commercial flights has become so great that some airlines have begun taking a proactive approach to the new trend by revisiting and revising their policies on the subject. Making accommodations for those with emotional support animals, however, is by no means limited to the airline industry. As Kim Bielan wrote last fall in her article, Accommodating Reasonable Accommodations for Service and Emotional Support Animals, fair housing laws that provide individuals with disabilities the protection to have emotional support animals—which are distinct from and are not to be confused with trained service animals—also extend to the condominium context. In addition to providing for support animals in private housing, state and federal laws also impose obligations on condominium associations to make certain reasonable accommodations and/or modifications for persons with disabilities. Such obligations are meant to afford everyone the ability to use and enjoy their property, regardless of disability status.
As the number of public discussions surrounding disability accommodations continues to rise, condominium associations will likely receive more requests from residents to make exceptions to policies or to make modifications to the existing premises. For example, requests for additional disabled parking spaces, wheelchair ramps, and automatic doors are not uncommon. This area of law is complex, and it can be confusing for associations. The questions we hear from trustees often relate to what the law requires and who is responsible for the cost. My goal in writing this article is to provide a background of the disability discrimination laws that most often impact condominiums and to give you a blueprint of sorts to use as a starting point if and when a unit owner asks for an accommodation or modification of the property.
Such obligations are meant to afford everyone the ability to use and enjoy their property, regardless of disability status.
Both the state anti-discrimination statute, Massachusetts General Laws Chapter 151B, and the federal Fair Housing Act, 42 USC §3604 (and their respective regulations) prohibit disability-based housing discrimination. Importantly, these laws apply to condominiums to the same extent as other forms of housing. In some cases, and as I’ll explain below, state law imposes even greater responsibilities than the federal statute.
Under the state and federal law, it is considered discrimination for a condominium association to refuse to make reasonable accommodations in rules, practices, policies, or services when such accommodations are necessary to afford a disabled person equal opportunity to use and enjoy the premises, including private units and public and common use areas. Whether such an accommodation is reasonable, requires highly fact-specific inquiry and a case-by-case determination, but cost alone is typically not sufficient to render an accommodation unreasonable.
Example 1. A condominium has a “no pets” policy. A deaf resident requests that the association allow him to keep a dog in his unit as a reasonable accommodation. The resident 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 association must make an exception to its “no pets” policy to accommodate this tenant.
Example 2. A condominium has a policy of providing unassigned parking spaces to residents. A resident with a mobility disability, who is substantially limited in her ability to walk, requests an assigned accessible parking space close to the entrance to her unit as a reasonable accommodation. There are available parking spaces near the entrance to her unit that are accessible, but those spaces are available to all residents on a first come, first served basis. The association must make an exception to its policy of not providing assigned parking spaces to accommodate this resident.
Example 3. As a result of a disability, a resident is physically unable to open the dumpster placed in the parking lot by the condominium association for trash collection. The resident requests that the association send a maintenance staff person to his unit on a daily basis to collect his trash and take it to the dumpster. Because the association is a small operation with limited financial resources and the maintenance staff are on site only twice per week, it may be an undue financial and administrative burden for the association to grant the requested daily trash pick-up service. Accordingly, the requested accommodation may not be reasonable.
State and federal law also prohibit refusing reasonable modifications of existing premises occupied or to be occupied by such person, if the modifications are necessary to afford the individual full enjoyment of the premises. Examples of such modifications could include ramping the main entrance of a condominium, lowering kitchen cabinets inside of a unit, and installing a shower grab bar. There must be an identifiable relationship between the request and the individual’s disability.
Example 1. A tenant, whose arthritis impairs the use of her hands and causes his substantial difficulty in using the doorknobs in his apartment, wishes to replace the doorknobs with levers. Since there is a relationship between the tenant’s disability and the requested modification and the modification is reasonable, the housing provider must allow him to make the modification at the tenant’s expense.
Example 2. A resident with a mobility disability asks the condo association to permit him to change his roofing from shaker shingles to clay tiles and fiberglass shingles because he alleges that the shingles are less fireproof and put him at greater risk during a fire. There is no evidence that the shingles permitted by the association provide inadequate fire protection, and the person with the disability has not identified a nexus between his disability and the need for clay tiles and fiberglass shingles. The association is not required to permit the modification because the resident’s request is not reasonable and there is no nexus between the request and the disability.
While both statutes make it unlawful to refuse to permit reasonable modifications, federal and Massachusetts law differ with respect to who is responsible for the cost of the changes. Under the FHA, reasonable modifications must be allowed at the expense of the disabled resident. However, the FHA, as with all federal law, establishes only the minimum requirements with which state laws must comply. Thus, states can impose additional requirements as long as the federal minimum is met.
The Massachusetts anti-discrimination statute, unlike the FHA, sets forth that reasonable modification could come at the expense of the association, as opposed to the resident. Pursuant to state law, the question of who pays for a reasonable modification begins with: 1) the total number of units in the condominium and; 2) ownership of the area to be modified
Under the Massachusetts statute—and barring undue hardship, which I will explain below—condo associations for properties with ten or more units could be responsible for the cost of making reasonable modifications to parts of the existing premises which are owned by the association as common area. For example, Massachusetts law states that where a condominium contains at least ten units, and the front entrance to the building in which a unit is located consists of no more than five steps, installing a wheelchair ramp for a disabled resident is a reasonable modification that could come at the expense of the association.
As with accommodations to rules or policies, however, whether a modification is reasonable is a case-by-case determination that requires a highly fact-specific inquiry, and the analysis does not end with the individual characteristics of the resident. Indeed, even if the modification is necessary to afford the disabled individual full enjoyment of the premises, it could nevertheless be deemed unreasonable. Under Massachusetts law, for example, modification to condominium common area paid for by the association is not reasonable—and therefore, is not required—if it would cause an undue hardship.
There is no bright-line rule for what constitutes undue hardship, so courts look at a variety of factors. Some of the factors that a court might consider when determining whether the burden caused by paying for an otherwise reasonable modification rises to the level of undue hardship include:
▪ the nature and cost of the modification needed;
▪ the nature and cost of the modification needed;
▪ the extent to which the modification would materially alter the marketability of the property;
▪ the overall size of the property, including but not limited to, the number and type of units, size of budget, and available assets, and;
▪ the ability of the association to recover the cost of the modification through a federal tax deduction.
It is important to understand that these factors and any other relevant information are considered as a whole, rather than in isolation.
▪ Create a procedure for handling reasonable accommodation/modification requests and make residents, and prospective residents, and board members aware of this policy. It should state, at minimum, how a person may request an accommodation or modification, to whom the person should make the request, and the time frame for approvals. This may aid individuals with disabilities in making requests and it may aid associations in handling requests. Further, in the event of a dispute later on down the line, having a procedure in place could help provide records to show that a request received proper consideration. NOTE: A request may not be refused because a resident fails to follow the procedure adopted by the association, and a request need not include the words “reasonable accommodation.”
▪ Seek only information that is needed to evaluate if a requested accommodation/modification may be necessary because of a disability:
- If the individual’s disability is obvious or otherwise known, and if the need for the requested accommodation/modification is also readily apparent or known, the provider (i.e., the condo association) may not request any additional information.
- If the disability is known or readily apparent to the association, but the need for the accommodation/modification is not, the association may request only information that is necessary to evaluate the disability-related need (i.e., whether the accommodation/modification is needed due to the disability). Such information must be kept confidential, and it must not be shared with other persons unless they need the information to make or assess a decision to grant or deny an accommodation/modification request, or unless disclosure is required by law (e.g., a court-issued subpoena requiring discloser).
- If the disability is not known or obvious, the association may request reliable disability-related information that: 1) is necessary to verify that the person meets the definition of being disabled (i.e., she has a physical or mental impairment that substantially limits one or more major life activities); 2) describes the needed accommodation/modification, and; 3) shows the relationship between the person’s disability and the need for the requested accommodation/modification.
Depending on the circumstances, information verifying that the person meets the definition of disabled can usually be provided by the individual herself (e.g., proof that an individual under the age of 65 receives Supplemental Security Income or Social Security Disability Insurance benefits, or a credible statement by the individual). A doctor, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability may also provide verification of a disability. In most cases, a resident’s medical records or detailed information about the nature of a person’s disability is not necessary for this inquiry.
▪ Provide prompt responses to reasonable accommodation/modification requests as an undue delay in responding may be deemed to be a failure to provide a reasonable accommodation/modification.
▪ Treat each request on an individual basis.
▪ Engage in an interactive process with the person requesting an accommodation/modification, even when the request would pose an undue burden.
- If the request is unreasonable, it is advisable to discuss with the resident whether there is an alternative accommodation/modification that would effectively address the requester’s disability-related needs.
- If the request is reasonable, but more feasible alternatives exist, the association may discuss with the resident if she is willing to accept an alternative accommodation/modification. However, keep in mind that the resident is not obligated to accept an alternative suggested by the association if she believes it will not meet her needs and her preferred accommodation/modification is reasonable.
- A failure to reach an agreement on an accommodation/modification request is effectively a decision by the association to not grant the request, and the resident could file a complaint to challenge the decision with the Department of Housing & Urban Development (HUD) or the Massachusetts Commission Against Discrimination (MCAD). Alternatively, the resident could file suit in either federal district court or Massachusetts Superior Court.
▪ Finally, it is recommended that when faced with a reasonable accommodation or modification request, the association seek legal advice from its counsel to ensure compliance with the current laws in this complex and ever-changing area.