MHCO Columns

Legal Case #2: OK to Request Information About a Disability to Verify Need for Accommodation

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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.

    Situation: A tenant claims she needs an emotional support animal for a mental disability and asks 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 asks her for verification. She provides a medical note listing her diagnosis. Although the disease is an officially recognized illness, the board wants more information about the disability and how it affects her “major life activities.” When she refuses to provide the information, it moves to evict her.  

    You Make the Call: Did the board’s request for more information about the disability go too far?

    Answer: No

    Ruling: The Kentucky court dismisses 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:

    1. 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;
    2. Exactly what accommodation is being requested; and
    3. Whether there’s a “nexus” or relationship between the disability and the need for the requested accommodation.