In Part I (January 2004 issue) of this article, we addressed the protected classes under the Fair Housing Amendments Act (“FHAA”) and the Colorado Civil Rights Act (“CCRA”), as well as various types of discrimination. Part II discusses the requirement of associations to make reasonable accommodations to rules and procedures for handicapped and disabled persons and allow handicapped and disabled persons to make reasonable modifications to their units and common elements.
Verification of Handicap
Once a resident claims to be handicapped and requests a reasonable accommodation, an association may seek verification of the handicap. However, this should be done with extreme caution and with the assistance of legal counsel. Specifically, the association may inquire as to how the disability limits the resident’s major life activities, but may NOT ask or require the resident to disclose the actual disability.
Reasonable Accommodation
After a determination is made that a resident is in fact handicapped or disabled, as defined in Part 1 of this article, an association must grant such person a "reasonable accommodation" if requested. A reasonable accommodation may be made by waiving or modifying a particular rule, policy, procedure or practice in order for a handicapped or disabled person to have equal access to and enjoyment of his housing. For example, the association should grant a blind person’s request to have a seeing-eye dog, even if the association has a rule against pets.
Keep in mind, however, that although the accommodation must be reasonable, the association need not do everything possible to accommodate a handicapped or disabled person. In determining whether an accommodation is reasonable, courts will consider whether the accommodation imposes an undue financial or administrative burden on the association. Courts will also consider whether the accommodation fundamentally alters the nature of the association’s services.
Furthermore, the association is not required to approve a requested accommodation where the disability or handicap is not related to the accommodation. For example, the association need not accommodate a handicapped person’s request to pay her assessments at a later date where her inability to timely pay is based on her ex-husband’s failure to make alimony payments rather than on her handicap. On the other hand, if the handicapped person cannot pay her assessments in a timely manner because her disability check does not arrive until the 15th of each month, such accommodation may be reasonable.
Reasonable Modification
An association must also allow a handicapped or disabled person, at his or her own expense, to make a "reasonable modification" necessary for the full enjoyment of the community. A "reasonable modification" is a structural, architectural or other physical change to a unit, building, or common element in order to provide a handicapped or disabled person use or equal access. Examples of reasonable modifications are wheelchair ramps, pool lifts, modifications to doors to accommodate wheel chairs, or grab bars.
Again, however, the modification must be reasonable. While a reasonable modification may require the approval of a ramp for a wheel-chair bound person, the association need not approve a plywood ramp in a community that is primarily brick and wrought iron. The association may condition approval on the installation of a brick and wrought iron ramp. However, if the expense of the brick and wrought iron ramp would cause undue hardship for the handicapped person, the association cannot reject the ramp simply because of the aesthetic impact. The association might want to consider paying the additional cost to have the ramp comply with the association’s architectural standards.
Preventative Measures
It is extremely important for associations to comply with fair housing laws, as failure to do so could result in substantial penalties, damages and attorney fees. Associations should establish and follow written procedures, policies and guidelines. Should the association be faced with an accommodation or modification request, having standardized procedures in place helps ensure that the association conforms to fair housing laws. Examples of procedures/policies and forms are Non-Discrimination Policies, Reasonable Accommodation and Modification Policies, and Reasonable Accommodation and Modification Request Forms. In addition, written documentation and recordkeeping of all fair housing requests and responses is essential. Should a discrimination complaint arise, detailed records not only confirm and verify how events actually occurred, but they also establish a non-discriminatory practice by the association. Finally, consult your attorney if you are unsure whether a request for accommodation or modification is reasonable, and/or if your association is faced with a discrimination complaint.
[PRINTER FRIENDLY VERSION]
