The Fair Housing Act - The Handicapped Person; Reasonable Modifications and Reasonable Accommodations

We routinely receive questions related to fair housing issues in common interest communities. Many community association directors and community association managers are aware that both the federal and state Fair Housing Acts prohibit discrimination against certain protected classes of persons in the provision of housing and services related to housing. One of the protected classes is handicapped persons. According to the Fair Housing Act, discrimination includes: (a) 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; and (b) a 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.

 

A frequent question we are asked is who bears the expense of a reasonable accommodation? Under a JOINT STATEMENT OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND THE DEPARTMENT OF JUSTICE,addressingREASONABLE ACCOMMODATIONS UNDER THE FAIR HOUSING ACT, issuedMay 14, 2004, the following question was posed: What happens if providing a requested accommodation involves some costs on the part of the housing provider?HUD’s and DOJ’s response is:

 

Courts have ruled that the Act may require a housing provider to grant a reasonable accommodation that involves costs, so long as the reasonable accommodation does not pose an undue financial and administrative burden and the requested accommodation does not constitute a fundamental alteration of the provider's operations. The financial resources of the provider, the cost of the reasonable accommodation, the benefits to the requester of the requested accommodation, and the availability of other, less expensive alternative accommodations that would effectively meet the applicant or resident's disability-related needs must be considered in determining whether a requested accommodation poses an undue financial and administrative burden.

As noted above, with respect to handicapped persons, discrimination also 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 modification may be necessary to afford such person full enjoyment of the premises. Once the modification is allowed, the next question that we receive is whether an association can require the modification to be removed by the resident when the resident moves. Section100.203(a) of the Code of Federal Regulations provides:

 

Reasonable modifications of existing premises. (a) It shall be unlawful for any person to refuse to permit, at the expense of a handicapped person, reasonable modifications of existing premises, occupied or to be occupied by a handicapped person, if the proposed modifications may be necessary to afford the handicapped person full enjoyment of the premises of a dwelling. 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. The landlord may not increase for handicapped persons any customarily required security deposit. However, where it is necessary in order to ensure with reasonable certainty that funds will be available to pay for the restorations at the end of the tenancy, the landlord may negotiate as part of such a restoration agreement a provision requiring that the tenant pay into an interest bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of the restorations. The interest in any such account shall accrue to the benefit of the tenant.

We believe that the express language of this section, “In the case of a rental,” means that the right to condition approval of the modification on restoring the interior of the premises only applies to rental situations, not to homeowners associations, and clearly applies only to the interior. If HUD had intended it to apply to homeowners associations, it could have easily left out the qualifier “In the case of a rental, the landlord may.” We have the same opinion regarding the additional highlighted language that discusses obtaining a deposit from the tenant, i.e., that it applies only in the case of a rental.

Under a JOINT STATEMENT OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND THE DEPARTMENT OF JUSTICEaddressing REASONABLE MODIFICATIONS UNDER THE FAIR HOUSING ACT issued May 5, 2008, the following question was posed: If a person with a disability has made a reasonable modification to the exterior of the dwelling, or a common area, must she restore it to its original condition when she moves out? HUD’s and DOJ’s response is:

No. The Fair Housing Act expressly provides that housing providers may only require restoration of modifications made to interiors of the dwelling at the end of the tenancy. Reasonable modifications such as ramps to the front door of the dwelling or modifications made to laundry rooms or building entrances are not required to be restored.

Once the modification is allowed, the next question is whether the Association is required to maintain it.In the JOINT STATEMENT OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND THE DEPARTMENT OF JUSTICE addressing REASONABLE MODIFICATIONS UNDER THE FAIR HOUSING ACT issued May 5, 2008 the following question was posed: Who is responsible for expenses associated with a reasonable modification, e.g., for upkeep or maintenance? HUD’s and DOJ’s response is:

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.

As you can see, the Fair Housing Act can be quite technical in its application, and can be very fact specific. If you have questions about how the Fair Housing Act affects your community, or any other matter concerning your community, please give us a call.