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Fair Housing Act helps protect disabled occupants from discrimination

By Benny L. Kass
Saturday, August 14, 2010; F01

Say you have a disability and want your condominium association to allow you to park closer to your unit. Or your psychiatrist has advised you to get a dog as a companion, but your association's rules do not permit pets. Maybe you discover that your unit has bedbugs, but your health condition cannot tolerate the insecticide that your cooperative plans to use to fumigate the building.

What can you do? What are your rights?

The magic words are "reasonable accommodation."

The Fair Housing Act, as amended by Congress in 1988, prohibits housing discrimination on the basis of race, color, religion, sex, national origin, familial status -- and disability. Community associations are covered under the law.

If you have a disability -- physical or mental -- your association (or your landlord, if you are a tenant) cannot "refuse to make reasonable accommodations in rules, policies, practices or services, if necessary for the disabled person to use the housing."

How do you prove disability? According to a recent case handed down by the D.C.Court of Appeals, you must show a disability and that the landlord (or community association) knew or should have known of the disability. You also must show that an accommodation is necessary for the use and enjoyment of the apartment, that the accommodation is reasonable and that the landlord (or association) refused the accommodation.

Rutland Court Owners is a cooperative in the Dupont Circle area. In August 2007, the co-op board was advised that there were bedbugs in the property. The board promptly arranged for an extermination company to inspect each unit and to make the appropriate treatment.

William Taylor has been a co-op owner since 1972. He suffers from several mental-health disorders for which he takes medication; he is assisted by a case worker and a psychiatrist.

According to the court, "Taylor raised various concerns about the exterminator selection and about the chemicals that would be used in the extermination process."

The co-op board did allow owners to provide alternative treatment plans, if they were deemed effective by the board. And although Taylor advised the board that he had started on an alternative plan, based on studies from Johns Hopkins, he did not submit a formal plan to the board.

Ultimately, the cooperative revoked Taylor's shares in the cooperative, and when Taylor did not move out of the building, the board filed a lawsuit for possession.

At trial, Taylor was required by the court to allow the extermination to proceed. He requested additional cleaning services to help prepare his unit for extermination. The trial court ruled that this constituted a "reasonable accommodation." Not only did the board ignore that request, it proceeded within three months to fine him and, two weeks later, to propose to revoke his shares.

This was determined to be a discriminatory act against Taylor, and the eviction request was denied. (The issue of whether Taylor's shares were validly revoked was not decided by the court because there was a separate legal matter on that issue.)

The cooperative argued to the Court of Appeals that it was not obligated to make reasonable accommodations because the situation was a "direct threat to the health or safety" of other co-op owners. The high court categorically rejected that argument, pointing out that the defense was "inapplicable until it had been determined that no reasonable accommodation could be made that would 'sufficiently' protect the health and safety" of others. And because, ultimately, the extermination was completed, the health and safety issue was moot.

Rutland Court v. Taylor was decided on July 8, and should be read by everyone involved in community association living. The reach of the Fair Housing Act is wide, and boards of directors and their property managers must be very careful when dealing with a situation involving a disability.

The departments of Justice and Housing and Urban Development actively enforce violations of the Fair Housing Act. Penalties can be severe. Here are a few examples:

-- A D.C. apartment owner and manager were required to pay $25,000 to compensate a visually impaired man who was refused the right to have a guide dog. The defendants also had to pay a $20,000 civil penalty to the federal government.

-- A condominium association paid $70,000 to a 10-year-old resident with a disability when the association required residents who use wheelchairs to enter the building through its rear service entrance, even though the front entrance was accessible to wheelchairs.

One thing often heard about the Fair Housing Act is that although the association must make reasonable accommodations to disabled persons, those persons have to pay for those accommodations.

That is the law. However, HUD and the Justice Department do not necessarily share that view. According to a joint statement on May 14, 2004, the housing provider may be required to pay for making reasonable accommodations, so long as it "does not pose an undue financial and administrative burden, and the requested accommodation does not constitute a fundamental alteration of the provider's operation. The financial resources of the provider, the cost of the reasonable accommodation, the benefits to the requester of the requested accommodation, and the availability of other, less expensive alternative accommodations that would effectively meet the applicant's . . . disability-related needs must be considered in determining whether a requested accommodation poses an undue financial and administrative burden."

Community associations should adopt guidelines for processing requests for reasonable accommodations. For example, the guidelines could stipulate that each request must be fully documented; that all requests must be acknowledged within a reasonable, short period of time; that all requests must be decided within 30 days -- unless the board needs more time to investigate -- and the requester is notified; and that all requests must be treated as confidential.

Parking is always a problem. If the parking area is not specifically allocated to an owner -- either by direct deed or as a limited common element, then the board is required to make reasonable accommodations. However, if an owner has an ownership interest in a parking space, unless that owner is willing to swap spaces, the housing act does not apply.

For more guidance, go to the Fair Housing Act section on Hud.gov, and to Justice.gov.

Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C, 20036.

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