"Reasonable accommodation" is a requirement both under the Federal Fair Housing Act (FFHA) and California's Fair Employment and Housing Act (FEHA). FEHA provides greater protections against housing discrimination than those found in federal laws.
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.