Published on: December 15, 2020
Requests for emotional service animals and other reasonable accommodations have proliferated over the past several years. Boards are faced with a resident’s request for an alteration to a rule knowing the unwarranted denial could result in significant liability under the Fair Housing Act. The Court in the recent case of Phillips v. Acacia on the Green Condominium (Ohio) found that two residents were not entitled to the requested reasonable accommodations because the requested accommodations were merely convenient and were not necessary.
In order to obtain a reasonable accommodation to an existing rule or policy, the requester must demonstrate two things. One, the existence of a disability. This is often accomplished through a letter from a medical professional if the disability is not obvious (such as a resident being wheelchair bound). Two, a nexus, or connection, between the requested accommodation and the disability. For example, the installation of a ramp so as to gain access to a clubhouse is clearly connected to a wheelchair bound resident’s disability.
In the Phillips case, one resident had a disability that limited her ability to walk long distances. The existence of a disability was not disputed. The resident requested permission to use a gas grill on her patio even though the association’s rules prohibited the use of grills in this area. The resident made the request as the common grills available to residents were far away from her unit.
The Board rejected the request for the owner to put a grill on her patio, but offered an alternative whereby the resident could call the gatehouse any time she wanted to use the grill. The gatehouse attendant would then provide a shopping cart so that the resident could more easily bring food and supplies from the unit to the common grill area. The resident did not accept this proposal and filed suit.
In order to prevail on her FHA-based claims, the court noted that the resident must, among other things, prove the requested accommodation is “necessary to afford an equal opportunity to use and enjoy their dwelling” and that the request is “reasonable”. The Court further noted that the Fair Housing Amendments Act does not require a housing provider to grant requests that are “more or better opportunities for those with handicaps as compared to those without.” The accommodation must be “needed, not merely desired.”
Ultimately the Court ruled that the requested accommodation was not necessary. In so finding, the Court opined that the resident did not prove she is unable to walk to the grilling area such that having a grill on her patio is necessary. The fact that the resident would walk to the pool (which was adjacent to the grilling area) on a daily basis, showed that the accommodation was not actually necessary. The Court found that the resident was capable of walking to the grilling area, but she preferred not to. In fact, the resident’s own doctor did not state she was incapable of walking to the common grilling area, only noting that she had difficulty walking prolonged distances. The doctor also noted that if she had assistance with carrying food supplies, it would benefit her disability (the exact proposal made by the Association). Since the Board had in fact offered a reasonable alternative, the Court found no violation of the FHAA. In closing, the Court noted that the FHAA “guarantees her only a ‘reasonable accommodation’ that satisfies her needs, not the particular accommodation that she wanted.”
The case also involved another disabled resident who had difficulty walking. The Court also found the Board was not required to grant the request because “on days when Weiss is not suffering such a periodic episode [of his disability], a personal grill is not necessary because he can walk to the grilling pavilion.” On the days when Weiss’ disability was particularly bad, the requested accommodation was still not necessary as he—by his own admission—could only walk a couple steps within the unit before experiencing extreme exhaustion. Thus, a grill on the patio would not help him, since he would be unable to walk that distance either, rendering the accommodation unnecessary.
While the point of the case is to show that not all requests must be granted, Boards should not use this case as justification to reject the next reasonable accommodation request received. There can be significant liability for rejecting a legitimate and necessary reasonable accommodation request. As such, Boards and managers should always consult with counsel when requests are received.
For a copy of the Phillips v. Acacia on the Green Condominium Decision [click here].
Dean T. Lennon