Reasonable Accommodation

It’s particularly challenging to handle requests for assistance animals by residents who’ve been caught violating your pet policies. The longer the resident has been breaking the rules, the more you may wonder whether he’s unfairly trying to pass off his pet as an assistance animal.

Not all requests for disability accommodations are reasonable. How can you tell which are and which aren’t?

While the COVID-19 pandemic may have kept people at home in 2020, it apparently didn’t keep them from suing for discrimination. There were 28,712 total fair housing complaints in that pandemic year, according to the National Fair Housing Alliance (NFHA). That’s the third highest annual total since 2009, and only 168 complaints fewer than the second-place year of 2019. (Note: NFHA, a national civil rights organization that tracks fair housing litigation across the US, hadn’t published the 2021 statistics as of the date we went to press.)

Continuing historic patterns, disability discrimination was the most common ground of complaint, accounting for 15,664 (54.46%) of all 2020 cases. It’s a pretty good bet that failure to provide reasonable accommodations was at the center of most of these cases.

Bottom line: Statistically at least, if an applicant or resident ever sues you for a fair housing violation, it’ll most likely be for allegedly violating your obligation to provide reasonable accommodations for a disability.

Exempting a disabled tenant’s service animal from a no-pets policy is a common kind of reasonable accommodation. But a Florida case deals with what a landlord can do when those accepted service animals create a nuisance for other tenants.

A somewhat odd case out of California illustrates another important qualifier of the landlord’s duty to provide a requested accommodation.

Situation: A tenant with “electromagnetic hypersensitivity” (EHS), which causes him to be physically and neurologically affected by radiofrequency emissions from cell phone equipment, asks the city to remove a cell tower near his unit. The city refuses, noting that the tower’s placement is based on requirements of federal environmental law. So, the tenant sues the city and homeowners association for disability discrimination.

The basic rule is that landlords must make reasonable accommodations to the point of undue hardship. Most resonable accommodations cases were decided on the basis of reasonableness, including an Arizona case posing the question of whether it’s reasonable to expect a landlord to introduce a whole new service or activity for a tenant with disabilities.

Nearly half of the cases this year address a landlord’s FHA duty to make reasonable accommodations. In most of these cases, the requested accommodation was purportedly necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling and public and common use areas. These cases offer insight into how far the duty to accommodate goes, including a key case out of Kentucky that sheds light on a landlord’s right to verify the requestor’s disability and need for the accommodation.

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 landlord 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 landlord moved to evict her.

Did the landlord’s request for more information about the disability go too far?

HUD recently announced that it has approved a Conciliation/Voluntary Compliance Agreementbetween the Housing Authority of Maricopa County, in Mesa, Ariz., and one of its residents who has a mental health disability. Under the agreement, the housing authority will pay $10,000 to the tenant and provide fair housing training for its employees who work with the public. The housing authority will also vacate the tenant’s eviction and waive the $3,516 eviction judgment that had been entered against her.