Realtor® Attorney Joint Committee

Considering FHA Reasonable Accommodations as Part of the Purchase Transaction

By: Ben Sorrell, Esq., Syprett Meshad, P.A

As a real estate agent in Florida, you are probably involved in a fair amount of transactions involving Condominium or Homeowners Associations (HOA). As your client reads the Seller-provided disclosures, which should include the governing documents of the association, your client may find some restrictions that could prohibit them from fully using and enjoying their home. One example is a common Condo prohibition on “all pets.” If your client requires an emotional support animal, it would be prudent to explore, as part of the purchase transaction, a reasonable accommodation to the Condo’s or HOA’s restrictions to allow such a pet.

FHA GUIDELINES

Under the Fair Housing Act (FHA), a person with a disability may request a reasonable accommodation from their Condo or HOA. Such person with a disability may be the property owner, the potential buyer, or anyone associated with a person with a disability. A disability is defined as “a physical or mental impairment which substantially limits one or more of such person’s major life activities.” Note that

the disability must “substantially limit” one or more “major” life activities.

REASONABLE ACCOMMODATION

Because the purpose of a reasonable accommodation is to ensure that the person with a disability is able to enjoy and use their property, including the common areas, as much as a non-disabled owner, it is considered discrimination under the FHA to “refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” A reasonable accommodation is a request to change a rule or restriction in the Condo or HOA’s governing documents, such as the no pet policy above, so that the owner is no longer substantially limited in one or more major life activities. Another example would be if the disabled person requires a larger wheelchairaccessible van that may be viewed as a “commercial” vehicle. Since most Condos and HOAs restrict parking of commercial vehicles, a reasonable accommodation would be to request an accommodation to the parking or vehicle rules. A reasonable accommodation could even be a request to change some aspect of the physical environment, such as changing steps to a condo unit into a ramp. However, costs associated with changes to the physical environment must be borne by the party requesting the accommodation.

In order to take advantage of the FHA’s reasonable accommodation, a person with a disability must first request an accommodation be made. A Condo or HOA is under no duty proactively ask or assume that the person has a disability and/or will be requesting a reasonable accommodation - and in fact are prohibited from inquiring as to same. If the Condo or HOA refuses to make the requested accommodation, and the request is reasonable, the refusal could amount to discrimination. The disabled person’s next step would be to contact HUD to file a formal complaint, which can be done via phone, mail, or online at www.hud. gov. •

This article is meant as a guide for educational purposes only. It is not intended to serve as legal advise and should not be used as a substitute for consultation with an attorney.