COACH's Pop Quiz!
In a recent case, a tenant claimed she needed an emotional support animal for a mental disability and asked the homeowners association board for an exemption from the community’s no-pet policy. Since the tenant’s disability isn’t readily apparent, the board asked her for verification. She provided a medical note listing her diagnosis. Although the disease is an officially recognized illness, the board wanted more information about the disability and how it affects her “major life activities.” When she refused to provide the information, the board moved to evict her.
You Be the Judge: Did the board’s request for more information about the disability go too far?
In this case from 2021, the Kentucky court dismissed the tenant’s failure-to-accommodate lawsuit without a trial. The tenant’s disability wasn’t obvious, and the board had a legitimate right to request additional information about its impact on her ability to engage in “major life activities” in making an accommodations decision [Commonwealth Comm'n on Human Rights v. Fincastle Heights Mut. Ownership Corp., 633 S.W.3d 808, 2021 Ky. App. LEXIS 104, 2021 WL 4484981].
Takeaway: Although you’re not allowed to ask privacy-invasive questions about a person’s disabilities, HUD guidelines give landlords leeway to gather limited information in response to a reasonable accommodations request to the extent the information is necessary to determine three things:
- The person meets the FHA definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities;
- Exactly what accommodation is being requested; and
- Whether there’s a “nexus” or relationship between the disability and the need for the requested accommodation.
For a review of fair housing rulings from 2021—and the lessons you can learn from them, see our February issue, “2021 Scorecard: Using Fair Housing Court Cases to Improve Your Compliance Efforts,” available to subscribers here.