Facing Your Fair Housing Fears & Everyday Dilemmas: Further FAQs & Follow-up
In this lesson, we’re following up on the Coach’s April 2018 lesson on facing your fair housing fears and everyday dilemmas. For that lesson—and a related webinar presentation—we turned to veteran fair housing expert, Anne Sadovsky, who has logged millions of miles traveling across the country educating property owners and management professionals.
During the webinar, Sadovsky shared stories from her 50 years in the industry about the fair housing-related blunders that she’s seen multifamily property owners and managers make—and strategies for avoiding them. She touched on a variety of fair housing concerns, but two topics drew the most questions from webinar attendees: assistance animals and parking accommodations.
In this lesson, we’ll review the law and present Sadovsky’s answers to FAQs about how to avoid fair housing blunders when handling these requests from individuals with disabilities. At the end of the lesson, you can take the Coach’s Quiz, to see how much you’ve learned.
WHAT DOES THE LAW SAY?
This year marks the 50th anniversary of the Fair Housing Act (FHA), the landmark federal law that bans housing discrimination because of race, color, religion, national origin, sex, disability, and familial status.
These days, more than half of all housing discrimination claims are based on disability. Under the FHA, it’s unlawful to discriminate against applicants, residents, or their guests because of their disability—or the disability of anyone associated with them.
In addition to general ban on discrimination, the FHA imposes additional requirements when it comes to protecting individuals with disabilities. Chief among them: The obligation to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling unit, including public and common-use areas. In essence, this rule requires you to make an exception to your general rules for individuals with disabilities when it’s both reasonable and necessary under certain circumstances.
Pay particular attention anytime that anyone raises disability-related concerns, complaints, or problems, because disputes over animals, parking, and other reasonable accommodation requests so often lead to fair housing trouble. To successfully pursue a claim in court, an applicant or resident must prove that:
The request for a reasonable accommodation was made by or on behalf of an individual with a disability. Under the FHA, a disability generally means a physical or mental impairment that substantially limits one or more major life activities. The law covers a wide range of impairments, such as orthopedic, visual, speech and hearing impairments; heart and lung conditions; and mental illness. An impairment substantially limits one or more major life activities when it has a significant impact on activities that are central to daily life, such as seeing, hearing, walking, or caring for oneself.
The community knew—or was aware of—the disability. Some disabilities, like visual or hearing impairments, are obvious or apparent, while other disabilities show little outward sign of impairment. But it doesn’t matter as far as the law is concerned: Communities must consider a reasonable accommodation request by an individual with a disability, whether it’s physical or mental, obvious or not. If the request is for someone who doesn’t have an obvious or apparent disability, then the law permits communities to request disability-related documentation to verify that he qualifies under the FHA’s definition of disability—that is, he has a physical or mental impairment that substantially limits one or more major life activities.
The request was necessary. The requested accommodation must be necessary—one that allows an individual with a disability an equal opportunity to enjoy the housing. In general, that means that there must be an identifiable connection between the requested accommodation and the individual’s disability. Sometimes, it’s easy to see the connection—for example, when a resident with a mobility impairment asks for an assigned accessible parking space as an exception to a community’s general parking policy. When the connection is not obvious, you can request documentation that verifies the connection between a resident’s disability and the need for the requested accommodation.
The request was reasonable. The law does not require you to grant a request for a disability-related accommodation when providing the accommodation would be unreasonable—that is, it would impose an undue financial and administrative burden on the community or fundamentally change its operations. Even when a request is unreasonable, federal guidelines say that communities should engage in an “interactive process” by talking to the resident about alternative accommodations that would effectively meet his disability-related needs without imposing an undue burden on the community.
The community denied the request. That’s easy to prove in some cases—if, for example, the community refuses to make any exceptions to its policies or formally denies a particular resident’s request. In some cases, however, there are disputes over whether a community refused the request—often in cases where the community requests documentation about the resident’s disability or need for the requested accommodation. Even when you’re allowed to request documentation to assess a reasonable accommodation request, you can’t use the process to stonewall or discourage the resident from pursuing the request. An unreasonable delay in responding to a reasonable accommodation request is the same as a denial under fair housing law.
FAQs ABOUT ASSISTANCE ANIMALS
Questions about assistance animals topped the list from webinar participants. It’s not surprising, given that disputes involving assistance animals are among the most common sources of fair housing trouble.
Fair housing law doesn’t prevent communities from adopting and enforcing pet policies: Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as pet deposits or rent charges. Whatever your policy or rules on pets, you must make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy the community.
Fair housing law allows not only service dogs, but also any type of animal that provides assistance or emotional support to an individual with a disability. HUD says that breed, size, or weight limitations may not be applied to an assistance animal. Assistance animals don’t have to be individually trained or certified—and they all have the same legal standing—regardless of what type of assistance they provide to an individual with a disability.
Don’t deny a request just because you’re uncertain about whether the applicant or resident has a disability or a disability-related need for an assistance animal. If the resident’s disability is not readily apparent, then HUD says that you may ask for reliable disability-related information that’s necessary to verify that she has a disability that qualifies under the FHA—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal.
For example, HUD says that you may ask applicants who request a reasonable accommodation for an emotional support animal to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support, according to HUD.
Q: Do fair housing rules for assistance animals supersede state, city, or local municipalities’ regulations that ban certain breed types?
A: Yes, Sadovsky says, federal fair housing requirements generally outweigh any state or local breed restrictions. Although HUD hasn’t specifically addressed the issue, its general rule is that breed restrictions don’t apply to assistance animals. You’re allowed to deny a reasonable accommodation request when that specific animal poses a direct threat to safety or property of others, but HUD says that your decision must be based on an individual assessment of the threat posed by that animal based on its behavior—not fear or speculation about the harm that it may cause or evidence about what harm other animals have caused.
Sadovsky says she often gets a related question: What if my insurance company says it won’t cover me for pit bulls and certain other restricted breeds, even if the dog is an assistance animal? Her answer: Look for a new insurance company. In the past, HUD has said that a request for a restricted breed could be considered unreasonable if it would mean cancellation of your policy—but that wouldn’t apply if comparable insurance, without the restriction, is available on the market.
Q: Do we have to consider a resident’s request to keep more than one assistance animal?
A: Yes, Sadovsky says, if the resident has a disability-related need for each animal, then it’s possible for him to have more than one assistance animal. In general, you may ask for documentation for each animal, unless he has an obvious disability-related need for one or more of them. Take for example, a blind resident who has a guide dog as well as a small dog as an emotional support animal. You’re not allowed to ask for documentation about the guide dog—since his disability and need for the dog are obvious—but you can ask for documentation to verify that he has a disability-related need for the emotional support animal.
Depending on the circumstances, Sadovsky says you may have to allow residents to keep more than two animals—despite any policy limiting the number of pets allowed. Let’s say, for example, your community allows two pets per unit, and the resident already has two authorized pets. Sometime later, she asks to add a dog to the household, explaining that she needs an assistance animal due to a disability. If she produces documentation that shows she has a disability-related need for the dog, then you’d have to let her keep all three animals in her unit—the two pets, plus her assistance animal.
Animals in Common Areas
Q: Can we restrict assistance animals from common areas?
A: No, Sadovsky says. HUD says that residents with disabilities may use assistance animals in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of your services. For example, HUD says that you can’t require residents with assistance animals to use a back entrance or service elevator instead of the main entrance or passenger elevators that other residents are allowed to use. In addition, Sadovsky says that residents are allowed to bring assistance animals into fitness centers or pool enclosures, though not the pool itself.
Q: Are we required to let residents bring assistance animals in the community room, including the kitchen area?
A: The answer depends on the type of assistance animal and where the resident wants to bring it. If it’s a qualified service dog under the Americans with Disabilities Act (ADA), for example, then it’s allowed into restaurants, hotels, and anywhere else that people can go, Sadovsky says. You can’t keep it out simply because food is being served, although health and safety rules may restrict access to areas where food is being prepared.
The rules are less clear cut when it comes to other types of assistance animals, such as emotional support or companion animals. You may have to allow it if the resident provides documentation about her disability-related need to bring the animal into these areas, so it’s a good idea to consult your attorney to help you sort it out.
Q: What happens if the resident’s assistance animal is running up and jumping on other residents?
A: You may expect residents with disabilities to have their assistance animals under their control when they’re in common areas, for example, by requiring dogs to be leashed unless doing so would interfere with the animal’s ability to perform disability-related tasks. You don’t have to tolerate bad behavior by assistance animals when they’re in common areas, and you may hold the resident accountable if the animal becomes disruptive or acts aggressively toward other residents.
Q: Who’s responsible for removing waste from assistance animals?
A: It’s the resident’s responsibility, Sadovsky says, so you may enforce rules that require that residents with assistance animals to pick up and dispose of the animal’s waste.
But what should you do when residents say they can’t do it themselves because of their disability? Even when that’s a legitimate concern, Sadovsky says, it doesn’t shift the responsibility for removing the animal’s waste to you. The answer, Sadovsky says, is to advise the resident that he’ll have to arrange to get help from a friend or neighbor—or hire someone else to do it.
Q: What should we do if an applicant or resident doesn’t want to submit documentation from her healthcare provider to keep an assistance animal?
A: Whenever someone asks for an exception to your pet policies to keep an assistance animal, it’s important to know the rules about when and how you can ask for documentation. If the applicant or resident has an obvious disability-related need for an assistance animal, for example, then you can’t ask for more documentation—you must make an exception to your pet policies so that she can keep an assistance animal. If, on the other hand, the applicant or resident doesn’t have an obvious disability-related need for an assistance animal, then you’re allowed to ask for documentation to verify that she has a disability and has a disability-related need to keep the animal.
If an applicant or resident balks at your request, then Sadovsky says that you should calmly and politely explain that it’s company policy and that she can’t live there with the animal without the necessary documentation. After all, she’s asking for an exception to your pet policy—and she’s not entitled to a reasonable accommodation unless she can show that she has a disability-related need to keep an assistance animal. In addition, Sadovsky says, it’s a good idea to emphasize that your community complies with all fair housing laws.
Coach’s Tip: For model forms you can adapt and use to get the contact information for the resident or applicant’s healthcare provider, as well as a verification form to send the provider, see our Model Forms: Use Forms to Verify Resident’s Need for Assistance Animal, here.
Q: What should we do if someone brings an animal into his unit in violation of our pet policies, but then later claims it’s an assistance animal?
A: Your lease and resident policies should address this, Sadovsky says. One thing you can’t do: Simply tell him that he has to get rid of the animal. That’s because fair housing law allows people to request reasonable accommodations at any time before—or during—the tenancy. Even if you doubt whether the request is legitimate, you should apply your policies for handling requests for reasonable accommodations, including assistance animals.
Q: Should we require documentation before allowing residents’ guests to bring an assistance animal into the community?
A: In general, Sadovsky says, the answer depends on how long the guest and his assistance animal plan to visit the resident. If it’s only for a day or a weekend, she questions why you’d want to bother, but it’s a different story if the visit stretches on for weeks or months. In determining how to handle it, you may be guided by your guest policy, which should set out the time limit that a guest may stay in a resident’s unit before being considered an additional occupant.
FAQs ABOUT PARKING
Even if your general policy is to provide unassigned parking on a first-come, first-served basis, you must consider making an exception to the policy as a reasonable accommodation when needed by an individual with disabilities so she may use and enjoy her home.
Sadovsky sees her fair share of questions about handling requests for parking accommodations. Among the most common:
Q: Is it okay to tell a resident requesting a parking accommodation to park in a city-mandated existing accessible space?
A: No, Sadovsky says. Communities are required to have a certain minimum number of accessible parking spaces for the public under the ADA, as well as state and local laws. If your community has only enough accessible spaces to meet those basic minimum requirements, then you must provide a reserved parking space over and above that number, Sadovsky says.
Even if you have more than the minimum number of accessible parking spaces, you could still run into fair housing trouble if you simply tell a resident to use an existing accessible parking space without designating one specifically for her use. Unless the space has been reserved for her, anyone with a handicapped parking placard or license plate is legally allowed to park there and there’s no way to ensure that the space will be available to the resident when she needs it.
Anne recounted problems that arose when a community granted a resident’s request to use the parking space right outside her door, but didn’t designate it for her exclusive use. Apparently, the manager had put up a sign marking it as a handicapped space but didn’t indicate that it was reserved. The resident complained that every day when she came home from work someone else with a handicapped permit was parked in her space, so she never got a chance to use it.
To avoid similar problems when handling reasonable accommodation requests for a specific space, Sadovsky says, it’s important to provide the applicant or resident with a reserved parking space. As part of the process, you’ll need to come up with some sort of permit number system, so you can reserve the space for that particular resident.
To keep other people from parking there, Sadovsky recommends signage that indicates that the space is reserved for a particular permit number and giving the resident something with the corresponding permit number for the vehicle. It could be a sticker to put on the car or a placard to put on the dashboard so that the permit number is visible.
Q: Should we list the resident’s name or apartment number on the reserved parking sign?
A: No, Sadovsky warns against putting the resident’s name, apartment number, or any other identifying information on the sign. In effect, you’d be disclosing that the resident has a disability, something you’re not allowed to do because fair housing law requires you to keep disability-related information confidential.
Furthermore, Sadovsky warns that putting that information on a sign could jeopardize the resident’s safety by making her vulnerable to anyone intent on preying on someone with a disability.
Q: Can a disabled person have two reserved parking spaces?
A: It’s possible, Sadovsky says, for example, if the resident has a caregiver who stays with him all day or even lives there, then you may have to grant a request for two spaces so that they each can park their vehicles. To handle situations like these, Sadovsky says it’s necessary to do your homework and chat with them to find out what the needs are—they may have other reasons for needing two reserved spaces.
Example: The owners and operators of a 134-unit Tennessee community recently agreed to pay $52,500 to resolve a fair housing lawsuit for allegedly refusing a reasonable accommodation request for two assigned parking spaces.
In its complaint, the Justice Department stated that the resident, who had mobility impairments from a stroke, leased a three-bedroom unit with her brother and his girlfriend. According to the complaint, the community didn’t have assigned parking and the lot behind their unit didn’t have designated parking spots for persons with disabilities. Allegedly, there was a concrete parking bumper between the parking space closest to their unit and the walkway to their patio.
According to the complaint, the community repeatedly denied the residents’ requests to remove the bumper and to assign the two parking spaces closest to their unit. Allegedly, the resident needed the extra room afforded by the second space to use her walker to get in and out of a car. Since the spaces were not assigned, the complaint alleged that other people parked there, interfering with the resident’s ability to leave her home. After the residents filed a fair housing complaint, the community allegedly retaliated by initiating eviction proceedings against them [U.S. v. Fairfax Manor Group, Tennessee, March 2018].
Q: What if you get so many requests for reserved parking that no non-disabled spots are left?
A: With parking limited and occupancy so high these days, Sadovsky said that every property she knows is voicing similar concerns. By law, you’re required to have a certain number of accessible parking spaces for the public, and to grant reasonable accommodation requests by residents who have a disability-related need for a reserved parking space. Potentially, she says, that could mean that every space at a property could be reserved for an individual with a disability.
It’s a good idea to get legal help if confronted with this problem at your community. If all available parking has already been assigned to other residents with disabilities, it may be necessary to start a waiting list for residents requesting parking accommodations. You don’t have to take spaces away from other residents with disabilities who previously received spaces as reasonable accommodations. You should grant requests in the order received—don’t get into a discussion about who’s more disabled.
· Fair Housing Act: 42 USC §3601 et seq.
Anne Sadovsky, CAM, CAPS: Certified Speaking Professional, Dallas, TX; (866) 905-9300; firstname.lastname@example.org.
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|June 2018 Coach's Quiz|