Ask Atty. Pat: What Rules Must Associations Follow For Disability Laws?
The Federal Fair Housing Act and the Connecticut Discriminatory Housing Practice Act apply to condominiums. Both of these acts require a condominium to make reasonable accommodations or allow reasonable modifications to the unit and the common elements for a person with a disability. Failure to comply with the provisions of those statutes expose a condominium to administrative investigations, administrative hearings, fines, mandatory education orders, court actions and damages. At a minimum, the condominium will have to hire a lawyer to deal with a complaint. Some of the provisions of the condominium documents and some condominium practices may be indirect contradiction to the requirements of those laws. The following are some questions that boards have asked regarding their obligations under those laws.
What is a reasonable accommodation?
A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that allows a person with a disability to use and enjoy a dwelling, including public and common elements.
What is a reasonable modification?
A reasonable modification is a structural change made to a resident’s unit or to the common elements, which is necessary to enable a resident with a disability to have full use of and enjoyment of the housing provided in the common interest community.
What is a disability?
Under federal law, a disability is defined as:
a physical or mental impairment that substantially limits one or more major life activities;
a record of having such an impairment; or
being regarded as having such an impairment.
“Major life activity” includes, but is not limited to, hearing, seeing, working, learning, breathing, caring for one’s self, performing manual tasks, walking, speaking, etc. The major life activity that is limited must be affected for a long period of time or to a great degree. In other words, a short term condition like a sprained ankle is generally not considered a disability.
Connecticut does not specifically exclude any individual from its coverage. The federal Fair Housing Amendments Act does, however, exclude individuals from protection who are currently using illegal drugs, individuals connected with the illegal manufacture of a controlled substance, and individuals who are a direct threat to themselves or others. The stricter Connecticut standards will apply.
Can the Association require that a request for an accommodation or modification be in writing?
No. A request for accommodation or modification may be made at any time, verbally or in writing. A request for accommodation or modification may be made by a person with a disability or by a representative making the request on behalf of and with the approval of the person with a disability. The request for accommodation or modification must be for a person with a disability. The request should describe the accommodation or modification, and explain how it is related to the disability.
Even if the Association provides a form for requests for accommodation or modification, the form does not have to be used.
Can board members discuss the request with other people who are not on the board or employed by the Board?
No. Any information about a disability, medical treatment, or details about tasks a service animal does shall be kept confidential. The disability or accommodations made should not be discussed with third parties. Managers and some necessary employees are excepted. The Association may consult with legal counsel, fair housing agencies or other experts.
Can the Association require proof that the person is disabled and needs the accommodation or modification?
Yes, but the type of request is limited. The Association may request additional information if the disability is not obvious and the need for the accommodation or modification is not clear. The Association may request documentation as follows:
(1) When the disability is obvious no documentation concerning the disability is required.
(2) When the disability is obvious and the requested accommodation or modification is clearly related to the disability, no documentation concerning the disability or the requested accommodation or modification is required.
(3) If the disability is known, but the requested accommodation or modification does not appear related to the disability, the Association may request only information necessary to evaluate the disability-related need for the accommodation or modification.
(4) If neither the disability nor the relationship between the disability and accommodation or modification is clear, documentation can be requested for both proof of the disability and the disability-related need for the accommodation or modification.
The Association can not request information concerning the details of someone’s disability nor request authorization for release of confidential medical records in order to verify a disability. The Association may only request documentation to verify the disability and the disability-related need for the accommodation or modification.
Must a doctor provide evidence of disability or need?
No. The Association may accept verification from a doctor or other medical professional, or other qualified third party who, in their professional capacity, has knowledge about the person’s disability.
Can the Association deny a request if a person seeking the accommodation or modification fails to provide the Association with additional documentation?
Yes, after notification. If additional information is necessary, the Association will notify the person seeking the accommodation what information is needed and offer a reasonable time to provide the information. If, after a reasonable period of time, the requester fails to provide the necessary information, the Association will base the decision whether to grant the request on the available information. If the Association has insufficient information, the Association may deny the request and inform the requester of the opportunity to submit another request later with more information.
Can the Association deny the request because it seems unreasonable?
Only if the request is unreasonable, using certain very limited factors.
In determining reasonableness, the Association may only consider a few factors:
(1) undue financial or administrative burden to the Association,
(2) direct threat to the safety of others or property, or
(3) fundamental alteration, that is, an alteration to the purpose, function and operation of the Association.
Can the Association deny the request if there will be costs to the Association?
Not usually. The Association may determine that a request is not reasonable if the accommodation would impose an undue financial and administrative burden on the community. The Association may consider these relevant factors in making its evaluation of the burden:
(1) the administrative cost or burden of the requested accommodation in comparison with the administrative cost of regular operation;
(2) limits or availability of Association resources;
(3) the benefits that the accommodation would provide to the requester; and
(4) the availability of other, less expensive alternative accommodations that would effectively meet the requester’s disability-related needs.
The term “undue” is narrowly interpreted. The burden must be extreme.
Can a request be denied if it will result in danger to the health or safety of others?
Yes, if no alternative is possible. The Association may determine a request is not reasonable if the accommodation or modification would constitute a direct threat to the health or safety of others, or would result in substantial physical damage to the property of others, unless the threat can be eliminated or significantly reduced. Inconvenience is not a direct threat.
Can a request be denied if the accommodation or modification is in violation of the documents?
Not usually. The Association may determine that a request is not reasonable only if the accommodation would fundamentally alter the nature of the community, for example, requesting that the Association provide assisted living services.
Can the Association deny the request if there is a fear that other residents will ask for the same thing?
No. The Association can not base its decision on the fear that an approval would encourage others to make similar requests for accommodations or modifications. The Association must consider each request on its individual merits.
Can be Association delay in response to the request?
No. The Association must respond to the requester with a decision or a request for documentation within two weeks. If a response is not made within that time, it is considered a denial of the request.
Can the Association deny the request when, if it is determined that the request is unreasonable?
Only if there is no alternative. If the Association determines that the request is not reasonable, it must inform the requester of the concern in writing. In the writing, the Association will specifically state why the request is not reasonable. The Association must offer any alternative accommodations or modifications that are easier, quicker or less expensive, but will still be workable.
Can the Association require a deposit for possible damages or for extras?
No. The Association may not require people with disabilities to pay extra fees or deposits as a condition of receiving a reasonable accommodation.
Does the Association have to pay for modifications to the common elements or the unit?
Not usually. Generally, the disabled person will bear the expense of making reasonable structural modifications to the Common Elements. The Unit Owner will bear the expense of making reasonable structural modifications to the Unit. Any modifications to the Common Elements required because of modification to the Unit are usually the responsibility of the Unit Owner. The situation may be different if the disabled person is in financial need.
Can the Association require that permits be obtained, that the modifications be done by a professional or that the modifications look like the rest of the community?
Sometimes. The Association may require that the person making the modifications be responsible for obtaining and paying for all approvals, permits and certifications required by any public agency. The Association may require that modifications be performed by a licensed and insured contractor if the Association normally requires that such work such work be done by a licensed and insured contractor. To the extent possible, the Association may require that any modifications to the Common Elements or visible from the Common Elements be consistent with the appearance and materials utilized in the rest of the Common Elements. If the disabled person is in financial need, the situation is different.
Can the Association require restoration when the disabled person moves out of the unit?
Just restoration of the common elements. The Association can not require restoration of modifications made to the interior of a Unit. The Association may choose to keep modifications to the Common Elements in place after a disabled person no longer requires the modifications for future use. The Association may require that the person who made the changes to the Common Elements bear the expense of restoration, unless the disabled person is in financial need.
Can the Association ask for a deposit for restoration of the common elements?
Yes, but must pay interest. The Association may require that the resident deposit money into an interest bearing account to ensure that funds are available to restore the Common Elements to their previous condition. The resident is not responsible for expenses associated with reasonable wear and tear.
Can a person with a disability have an assistance animal ?
Yes. It is a reasonable accommodation to allow residents to live with assistance animals that meet their disability-related needs, whether the needs of physical or mental.
An assistance animal may be a dog, cat, bird or other common domestic animal. “Companion” animals are considered to be assistance animals, if they are required to meet a disability-related need.
Assistance animals may be any breed, size or weight. Assistance animals need no special license or visible identification, like a harness or identification vest. Some owners of assistance animals may choose to put special collars or harnesses on their animals. The Association may require that an assistance dog have a current town license. Assistance animals need no “certification.” A person may train his or her own assistance animal.
The Association can not charge owners of assistance animals any pet deposits or fees. The assistance animal’s owner may be responsible for the animal’s care and liable for any damage the animal causes. If more than one assistance animal is needed, the additional animals must be allowed.
Should the Association adopt a policy and procedure or considering request for modification and/or accommodation for a disabled person?
Absolutely. The cost for failure to comply with the law are high. The complaint may damage the reputation of the community. The requirements are complex and require strict compliance. All present and future unit owners, board members and managers need to be informed as to the legal requirements. Having a policy and procedure will prevent inadvertent violations.
- Pat Ayars is a Glastonbury attorney who specializes in condo issues. She is a member of the Connecticut Condo Association Advisory Committee.