A Balancing Act: The Disability Dilemma

When a resident with a disability requests a “reasonable accommodation,” the board has decisions to make. How should it respond? Can the board consider alternatives? Is cost an appropriate consideration? What will the board communicate to other residents who feel strongly one way or the other? What can be done to avoid litigation or the involvement of a government agency?

It is critical that condo and co-op boards be aware of their legal obligations in responding to these types of requests. Here are the answers to the above questions.

What types of reasonable accommodations may be requested? Residents with disabilities may request that their condo or co-op provide reasonable accommodations that will allow them to enjoy the rights and privileges of their apartment, as well as the building’s common areas. These may consist of structural changes to the building (the installation of a ramp or lift at the building entrance, for example), or modifications to the house rules or other policies (such as waiving a “No Pet” policy to allow a resident to have an emotional support animal).

Who can request a reasonable accommodation? A person with a disability is entitled to request a reasonable accommodation. In New York City, “disability” is a very broad concept under the law, and consists of any physical, medical, mental, or psychological impairment. A resident who uses a scooter or walker only some of the time, for example, may qualify as a person with a disability.

A request for an accommodation may be made by the person with the disability, or by someone else on his or her behalf. Even the most informal communication may impose a legal obligation on the board to respond.

Boards are entitled to request documentation from the resident’s medical provider to evaluate whether he or she requires an accommodation, unless the need for the accommodation is obvious (for example, when a resident who is blind requests to reside in a “No Pet” building with a service animal).

What qualifies as a reasonable accommodation? What constitutes a reasonable accommodation depends on the facts of each case. Whether the requested accommodation is “reasonable” or, conversely, presents an “undue hardship” on the condo or co-op will generally depend on: (1) the interests of the resident in obtaining access and the specific accommodation requested, (2) the cost and other burdens of the proposed accommodation, if any, on the housing provider. In New York City, the condo or co-op has the burden of proof to demonstrate “undue hardship.”

How do you deal with requests for structural modifications? Courts have interpreted the New York City Human Rights Law to require that housing providers pay for structural modifications when they qualify as a reasonable accommodation. A request for a permanent ramp to be installed in a building constructed in the 1920s or 1930s, for example, may pose substantial financial and logistical challenges. Residents may express concerns to the board regarding the cost of the project, how it may affect property values, the time frame for construction, and whether it is even necessary.

Boards should always address the specific concerns of the resident requesting the accommodation. If an alternative is proposed, it should ideally provide access that is equivalent to the resident’s preference. Every effort should be made to reach agreement with the resident, preferably in writing. Due diligence is important; the owner, lessee, or managing agent could be held liable for monetary damages and penalties for failing to provide a reasonable accommodation.

These potential consequences are illustrated in Riverbay Corp. v. New York City Commn. on Human Rights. In this case, a resident who used a scooter requested that the building make the main entrance accessible (since he would have to wait more than 45 minutes for someone to let him into the building). Instead of replacing the front entrance doors for an estimated cost of $19,965, the co-op board approved the installation of automatic door openers at the side entrance. The court in Riverbay determined that this modification was not “reasonable.”

There were important differences between the two entrances in Riverbay. To use an accessible side entrance, the resident would have to travel an additional 50 feet. It was also deemed less safe; the side entrance did not have glass allowing the resident to see the entryway, video surveillance, or an intercom. In addition, the resident would have had to carry with him a remote control device at all times to access the side entrance. Based on these factors and the cost of the resident’s request, the court determined that the housing provider failed to provide a reasonable accommodation, imposed a fine of $5,000, and awarded the resident $16,000 in damages.

How do you respond to requests for modifications to house rules or other policies? Boards must also evaluate requests for modifications to house rules or policies. One situation we frequently encounter is where a resident violates a rule, and then requests to be exempted from that rule based on a purported psychological condition. Boards and their managing agents must carefully consider how to respond in these situations. When a resident violates a policy or rule, or even creates a health and safety hazard through his or her conduct (which we often see with “hoarder” residents), the board must still act in good faith and consider the request.

In Sinisgallo v. Town of Islip Housing Auth., for example, a public housing provider terminated a tenant’s lease after he struck another resident in the face several times during an altercation in the building. The tenant requested an administrative hearing to contest the lease termination, during which he disclosed that he was being treated for bipolar disorder and had his medications adjusted the day after the incident. The tenant requested a probationary period during which the housing provider could evaluate whether the changes to his medical treatment would prevent a recurrence of violent behavior. The housing provider refused the request and instead began an eviction proceeding.

The tenant in Sinisgallo then started a federal lawsuit to stop the eviction proceeding. He argued that the housing provider failed to grant a reasonable accommodation in violation of the Fair Housing Act and other laws. The court sided with the tenant and issued an injunction, holding that the housing provider failed to sufficiently consider the tenant’s request for an accommodation.

What are the best practices? Condo and co-op boards should act quickly when they receive an accommodation request. They should engage the necessary resources to properly evaluate the request, investigate options, and respond to the resident. Hiring design and construction professionals familiar with physical accessibility requirements, for example, may be advisable when a resident requests that a structural modification be made. Boards should also be mindful that requests by residents with purported psychological conditions require the same due diligence as requests by individuals with mobility, visual, or auditory impairments.

Managing agents must immediately advise the board of all requests for accommodations, whether they are verbal or made in writing, regardless of how informal they may seem. Other than acknowledging the request, managing agents should avoid discussing the matter with the resident until he or she consults with the board and preferably counsel.

The board’s evaluation of accessibility options, and all of its communications with the resident, should be documented. In our experience, a timely and respectful response to a request for a reasonable accommodation will probably reduce the risk of litigation.