The Only Rule Is That Each Case Is Unique

Clients call us all the time about reasonable accommodation requests made by their residents and prospective residents. Two recent reasonable accommodation requests illustrate the most important points about evaluating and handling reasonable accommodation requests. First, general rules don’t apply.  Second, evaluate each request on a case-by-case basis based on the specific facts of the request, and not based on prior or similar cases.

The first of the reasonable accommodation requests involved a husband and wife. At the time of their application, both requested close-up reserved parking spaces based on each of their disabilities.  The community needed to avoid the temptation to automatically limit the couple to a single close-up reserved space.  We advised the community to evaluate the parking accommodation requests separately.  The community needs to consider the wife and husband separately in deciding if reasonable accommodations should be granted. If the wife meets the definition of disability, needs the parking accommodation, and the granting of the parking accommodation is reasonable, the wife should be granted a parking accommodation. Likewise for the husband.

If both the husband and wife are entitled to a parking accommodation (meet disability and need tests), the request for two spaces would likely have to be granted if the request is also reasonable.  However, if based on the facts it is not reasonable, the community may not have to grant two separate parking accommodations for a single household.  For example, while both husband and wife requested a close-up reserved spot, it may be unreasonable to grant each of them a close-up reserved spot if they only own one vehicle. Similarly, if parking is limited at the community the community might conclude that providing two spots for a single household may be unreasonable. Remember, gather the facts, apply the test and keep options open for a continuing dialog.

The second recent reasonable accommodation request also involved a prospect and a request for a close-up reserved parking spot.  An obviously mobility-impaired prospect requested that a parking space close to her desired unit be reserved exclusively for her use.  The prospect also requested an additional spot next to her reserved spot to be used as an access aisle.  The community has a reserved parking policy. Specifically, because parking is limited at the community, each unit has a corresponding reserved parking space.

Based on these facts, the community would negatively affect the rights of other residents if the community granted this request. Since all spots are reserved, the community could only give the prospect her desired space by forcing another resident to give up their space. Because the prospect also needed an access aisle, the community would also be forced to require an additional resident to give up their space by granting the request.  The resident’s request for an access aisle also prevented the alternative of residents trading parking spaces.  If the prospect only needed one space, a proposed alternative would be to have another resident trade spots with the prospect. Because the prospect needed two spots, the trade was not feasible (you can’t trade two spots for one).

Are you allowed to negatively impact the rights and privileges of other residents by granting a reasonable accommodation to a disabled resident? Probably not.  However, the legal answer is not clear.  The Federal Fair Housing Act Amendments of 1988 made disability a protected class.  A federal court decided one of the most significant parking cases to date in 1995.  In that case, the court commented that the court had never determined whether a disabled resident’s request for a reasonable accommodation is allowed to negatively affect the rights and privileges of other residents.  The court presented the issue and then failed to address the issue.  In the fourteen years that have passed no court has directly answered this question.

Many courts have stated in general terms that disabled residents shouldn’t be given preference over non-disabled residents. “An accommodation should not extend a preference to handicapped residents relative to other residents, as opposed to affording them equal opportunity. In other words, accommodations that go beyond affording a handicapped tenant an equal opportunity to use and enjoy a dwelling are not required by the act.” Based on the facts of these cases, the courts’ general statements are of little use.  No case has specifically addressed under what circumstances a landlord must grant an accommodation if it negatively affects other residents’ rights.

Moreover, the courts’ statements that disabled residents shouldn’t be given preference seem to conflict with the very nature of an accommodation.  A reasonable accommodation is by definition an exception to a rule that applies to all other residents. Thus, granting an accommodation frequently involves a disabled resident receiving something (a preference) that non-disabled residents aren’t entitled to.  Specific examples of such preferences are endless. One such example is that non-disabled residents are not entitled to pets or animals at a non-pet community.  Disabled residents (if they meet the test) are entitled to assistive animals at non-pet communities.

Based on the facts, that all parking spots in the community are reserved and that two other residents would be negatively impacted by allowing the reasonable accommodation for one disabled resident, we advised the client in this second example that they could deny the resident’s request because it was unreasonable. Regardless of the lack of clear legal precedent, requiring two residents to sacrifice their parking rights to grant an accommodation is not reasonable.  While each request must be evaluated individually, our position is that accommodation requests cannot negatively affect the rights of other residents.

However, we caution against quickly and wrongfully concluding that accommodation requests automatically negatively impact the rights and privileges of other residents.  Again, while most requests involve giving a preference to a disabled resident, most requests do not require sacrifices by other residents. For example, on a property with a first-come first-served parking policy, granting a disabled resident a close-up reserved parking space does give the disabled resident a preference over other non-disabled residents. However, the other residents’ rights are not negatively affected.  The other residents did have the possibility of parking in the close-up reserved parking space (before it was exclusively reserved for the disabled resident). However, the other residents had no guarantee that the parking space would be available for them to park their car on any given occasion.

Because reasonable accommodation requests are always determined by the facts on a case-by-case basis, the facts in each case are critical. Unless you know all of the facts, you cannot properly evaluate reasonable accommodation requests. Never respond to a resident’s (prospect’s) reasonable accommodation request without knowing all the facts, and evaluating those facts against the legal requirements.  Changing one fact may totally change the outcome of a request.  In the second example, if the prospect had requested two parking spaces (one to park and one for an access aisle) at a community with a first-come first-served parking policy, the request should have been granted.  For these same reasons, you should also never respond to a resident’s reasonable accommodation requests based on “general rules”, what you have done in the past for other residents, or the community’s decision on a past request even if the request sounds the same as the previous request.

View Resource »