Posted on January 27, 2010 by Scott M. Badami

Service Animals

More and more professional apartment management companies receive requests for service or companion animals.  When you receive such a request, management must respond to it.  Here are a few thoughts to keep in mind:
 
Both the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA) apply in situations involving a disabled resident's request for a service animal.  Management simply needs some formal notice to acknowledge the animal as a service animal.  While most service animals are dogs, there is no requirement that the animal be a dog.
 
Pet deposits and pet fees should not be charged to residents with service animals.
 
When the resident's disability is not apparent, the better practice is for management to request a note from a medical/health care professional confirming the need for the service animal.  It is not, however, management's place to inquire into the specifics of the claimed disability.  The ADA and the Department of Justice have established two training requirements for an animal to be considered a service animal:  (1) a service animal must be individually trained to perform tasks or work for the benefit of a disabled individual; and (2) a service animal must be trained to behave properly in places of public accommodation.  Management can request information to ensure the animal meets minimum training standards from a recognized school for service animals, including public access training, particularly when there is a concern about the size/breed of the animal.  Also, the animal should wear some type of easily recognized identification symbol (i.e., harness, backpack).
 
The owner of the service animal should:
  • obtain required licensure, health and training verification;
  • provide care, feeding, and supervision of their animal;
  • keep animal on leash at all times. The animal should never be permitted to wander around off leash except if the animal is working;
  • maintain control of the animal at all times;
  • assume responsibility for any damages caused by the animal;
  • maintain the good health of the animal;
  • keep the animal well groomed and measures should be taken, at all times to maintain flea and odor control; and
  • clean up animal waste and properly dispose of it.
Again, service animals should be welcomed at residential properties.  Residents and management can easily work together to document the appropriate paperwork.
 
Just A Thought.
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Posted on January 11, 2010 by Scott M. Badami

What Should You Look For in Reasonable Accommodation Requests

As I have discussed in prior posts, federal and state fair housing and anti-discrimination laws are designed to ensure that people with disabilities have an equal opportunity to access and enjoy their homes.  Owners and property management companies can be required to make a reasonable accommodation or a reasonable modification as a result of a disability.  An accommodation is a change in a policy or a procedure at the community.  An easy example is a request to waive a no-pet policy for a hearing impaired resident who has a service animal.  A modification, for example, is to lower a mailbox to assist a resident with a mobility impairment.


It is the responsibility of the resident (or applicant) with the disability to make the request for an accommodation to management.  Owners are not obligated to seek out a resident and make accommodations or modifications.


Although not required, the best practice is for reasonable accommodation and modification requests (as well as all subsequent correspondence) to be in writing.  Management should keep those letters in the resident’s file.  Having the requests in writing facilitates clear communication and creates a "paper trail" in case the issues are not resolved and we have to defend a subsequent fair housing claim.


As a part of an accommodation request (particularly when the disability is latent), the resident should include a note from a medical professional concerning the condition and the accommodation or modification request.  Management is not required to grant a reasonable accommodation or modification request unless we know or should have known about the disability. Again, in cases where the condition is not always obvious, the letter serves as notice of the disability.  Moreover, a note from a medical professional answers many, if not all, of management’s legitimate medical questions in the least intrusive manner possible.


Make no mistake, management knows and understands the law.  We want to get it right.  In my experience (which is now confirmed by HUD) fair housing complaints concerning disabilities and reasonable accommodations/modifications related to disabilities are now the most common complaints being filed.  Let’s not unnecessarily add to that stack of complaints.  Then you will not just need to read my blog, but you will need to contact me to defend a claim.


Just A Thought

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Posted on January 4, 2010 by Scott M. Badami

What To Do About Second Hand Smoke Accommodation Requests?

Professional apartment community owners and management companies know we have to respond to reasonable accommodation requests in order to ensure our compliance with the federal Fair Housing Act as well as various state laws. Accommodation requests come in all shapes and sizes. And we must respond to all of them.

I recently had two separate cases involving requests to live in a non-smoking building. In other words, the residents requested as an accommodation for their allergy or sensitivity to second hand smoke that we prohibit smoking in and around their apartments. These requests raise challenging issues because if we grant the request we are potentially infringing on the rights of other residents and guests to smoke in their personal homes. While we all may have different views on smoking, it is absolutely legal for adults to smoke – especially in their own living room.

Federal and state fair housing and disability laws, of course, are designed to ensure that people with disabilities have an equal opportunity to access and enjoy their homes. Owners and property management companies can be required to make changes to the rules or policies of the community as a reasonable accommodation to a disability. Easy examples include requests to waive a no-pet policy to assist with a service animal or to attach grab bars in a bathroom. It is just not practical to declare an entire building “non-smoking” and I am aware of no requirement that management make such a change. That being said, here are a few ways to respond to this request:

• Management could potentially prohibit smoking in the common areas of the community.

• Management could offer to transfer the resident to a vacant unit in the complex, away from the drifting smoke. To be sure, management could not guarantee that a future resident might not smoke. Also, there would likely be some negotiation concerning how the moving/transfer expenses would be taken care of. Management could not, of course, evict another resident just to create a vacancy.

 • Management could offer to permit the resident to break his or her lease without penalty in order to find another apartment community in which smoke does not appear to be a problem.

 • Management could offer to put additional weather stripping or caulk around the windows and doors. Alternatively, management could offer a fan or air purifier.

I have not seen any court decision requiring management to declare that residents cannot smoke in their own homes.  I am, however, aware of efforts by residents to make these no smoking requests.  Management must appropriately respond to protect itself and all of our residents -- even those who smoke.

Just A Thought.

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