"Reasonable accommodation" for persons with disabilities is a requirement both under the Federal Fair Housing Act (FFHA) and California's Fair Employment and Housing Act (FEHA).
Definition. The U.S. Department of Housing and Urban Development defines reasonable accommodation as "a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces." (HUD Service and Assistance Animal Guidance.) The Sixth Circuit U.S. Court of Appeals clarified the definition in a case were an owner with asthma sought "reasonable accommodation" be demanding the association ban all smoking in the entire project, including inside units, the court ruled in favor of the association.
[T]he phrase "reasonable accommodation" means a moderate adjustment to a challenged policy, not a fundamental change in the policy...the word accommodation means adjustment. (Davis v. Echo Valley Condominium Association (2019) 945 F.3d 483, 490; internal quotations marks and citations omitted.)
The adjective “reasonable” further narrows the types of accommodations that the text directs property owners to make. Even if a request would qualify as an adjustment, the adjustment still must be moderate, not extravagant or excessive. Put another way, the word reasonable conveys that the adjustment cannot impose undue financial and administrative burdens. The word also indicates the process that courts should undertake when deciding if a proposed adjustment is unduly burdensome. Dating back to the reasonable person of tort fame, a reasonableness inquiry has long been associated with the balancing of costs and benefits. So an adjustment goes too far if the costs of implementing it exceed any expected benefits it will provide the person requesting it. (Id. at 490-491; cites and quote marks omitted.)
One last textual point. The prepositional phrase “in rules, policies, practices, or services” modifies the noun accommodation and provides the benchmark against which to assess whether a request qualifies as a reasonable accommodation. In other words, the phrase tells courts that they should not ask whether the request is a moderate adjustment or a fundamental change in some abstract sense. Rather, they should ask whether the request is a modest adjustment or fundamental change of the rule, policy, practice, or service that the plaintiff challenges. (Id. at 491; cites and quotes omitted.)
Confidentiality. When a disabled person requests reasonable accommodation for their disability, California Code of Regulations 12176(b)(1) requires, "All information concerning an individual’s disability, request for an accommodation, or medical verification or information must be kept confidential and must not be shared with other persons..."
Verifying the Disability. When a disabled person makes a request for reasonable accommodation and the person's disability is obvious, the association cannot request additional information about the existence and validity of the disability. When the disability is not obvious, an association can request information verifying:
- The person is disabled,
- The need for the requested accommodation, and
- The relationship between the disability and the requested accommodation.
Interactive Process. When a request for reasonable accommodation is made, the association must engage in an "interactive process" with the person making the request. Once the need for accommodation has been established, the association must engage in an informal interactive process to clarify what the individual needs and identify the appropriate accommodation. Failure to do so in good faith may result in liability if a reasonable accommodation would have been possible.
Reasonable Accommodation vs. Modification. A “modification” under the FHA is distinct from an accommodation. The Fair Housing Act does not provide a definition for “modification,” but regulations promulgated by HUD define a modification as any change to the public or common use areas of a building or any change to a dwelling unit. Claims for reconstruction or renovation to a dwelling are actionable under the reasonable modifications section of the FHA, and not the reasonable accommodation section.
Discrimination. Discrimination under the Act includes “a refusal to permit, at the expense of the handicapped person, 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.” (42 U.S.C. §3604(f)(3)(A).) The statute also makes unlawful any “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” (42 U.S.C §3605(f)(3)(B).)
Recommendation: Failure by a board to make reasonable accommodation when an appropriate request has been made can lead to costly litigation for the association. Boards should consult with legal counsel when a resident makes a request for reasonable accommodation.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.