Reasonable Accommodation vs Reasonable Modification

Most property managers, whether they be for homeowners associations or apartment complexes, are familiar with or have at least heard of the Fair Housing Act. This blog looks at what can be done to avoid perceived discrimination when housing someone who suffers from a disability.

The Fair Housing Act (42 U.S.C. §§ 3601-3619) prohibits housing discrimination for the following protected classes: race, color, sex, religion, national origin, familial status, and disability. For some, housing discrimination against a single mother of three or against a Caribbean immigrant might be easy to detect. So often, the same cannot be said against someone with a disability. Not all who are disabled are reliant on wheelchairs, after all. A disability might be mental or otherwise non-conspicuous. This means that property managers may need to practice limited discretion in deciding that an accommodation is appropriate. If it is not clear, it is within the law for a property manager to ask for a doctor’s note or some other documentation to evidence the disability before granting the permissions or making the financial arrangements (which are sometimes the burden of the property manager, see below) to satisfy a request. But how must a property manager or board oblige to be in compliance with the law?

There are two methods depending on individual needs of the disabled: “reasonable accommodation” and “reasonable modification.” Let’s start by examining the meaning of the latter. It is not lawful to prohibit reasonable modification of a residential dwelling (interior or exterior) which would permit the disabled from fully enjoying use and occupancy of the premises. The term “modification” means just that: physically modifying the structures to accommodate the needs of the disabled. This could include, for example, the construction of an access ramp or installation of handrails on the premises. Many property managers and board members do not push back because it is quite sensible, and within the law, to have the architectural change applicant pay for both the construction of the modification, its maintenance, and the cost of restoration (interior modifications only) once they move out. As for the architectural review committee member who wishes to deny such a request to preserve building aesthetics or for whatever reason, they are being discriminatory and behaving illegally.

Reasonable accommodation differs from reasonable modification because there is no need to modify the built environment in order to provide support for the disabled. Rather, reasonable accommodation involves modification of rules, policies, practices or services, according to the law. At homeowners associations, this could mean granting a variance to a “no pets” policy for a person who needs a service animal to fully enjoy the use and occupancy of HOA premises. The topic of service animals can provide quite a bit of confusion and vexation for board members, some of whom question if the applicant really needs a “comfort animal” or is simply trying to skirt the rules. The short answer is yes, they need it if they request it, and you should let them have it to avoid a discrimination lawsuit. If you feel it is necessary, have them provide a doctor’s note as supporting evidence. Property caretakers may not charge a security deposit for the service animal, though they may charge the pet-keeper the costs of cleanup or damage if any damage is done. According to the law, the HOA might actually have to pay for accommodation themselves rather than collecting fees from the applicant, when necessary, so long as it is not an undue financial burden. Identifying what is and undue burden, and being able to support that, is key in this instance.

The CAP Management staff became educated on these matters recently by attending a presentation at the Colorado Department of Regulatory Agencies (DORA) offices in downtown Denver. Thank you for taking the time to read our blog. We hope it has been informative.