California and federal law provide important protections for disabled people. Morally and legally, doing what we reasonably can to help the disabled have normal lives is the right thing to do.
However, requesting residents and responding HOAs don’t always fully understand the legal requirements. HOAs fall under “housing accommodations” under the Fair Housing laws and must comply with them.
California in 2020 adopted Fair Housing Regulations, and in 2022 renamed the former Department of Fair Employment and Housing as the Civil Rights Department. This department has expanded its housing investigation and enforcement staff in recent years. HOA residents, boards and managers are affected by the regulations regarding disability accommodation.
Here are 11 tips regarding disability accommodation requests, noting the applicable regulations (California Code of Regulations Title 2, Division 4.1, Chapter 5, Subchapter 7).
1. Requests for accommodation of a disability must be kept confidential by the HOA board and manager. (Regulations Section 12176(b)). This means that such discussions by the board must be only in closed session.
2. HOAs are expected to follow an “interactive process” regarding accommodation requests. (Regs. Section 12177) This means that the HOA is expected to dialogue with the requesting resident regarding the requested accommodation.
3. If the disability is obvious or already known to exist, the HOA may not require further information regarding the disability. (Regs. 12178(b)). If the disability is not known, the information provided to the HOA should describe and explain how the accommodation will help the resident. (Regs. 12178(c)).
4. The accommodation may be denied if the person is not disabled, if the requested accommodation is not connected to the disability, or if the accommodation would harm others, among other reasons (Regs. 12179).
5. Assistance animals include “service animals” (trained to perform a needed task) and “support animals” (providing emotional support) Regs. 12005(d). They are not “pets” and are exempt from HOA pet rules. However, they cannot create a nuisance and the animal’s owner is still responsible for their actions.
6. Accommodations involving alterations to the person’s home are at the cost of the requesting person.
7. Some people insult the disabled by misusing the process to claim a disability simply to gain exemption from a given HOA rule. The interactive process often exposes such people. I have seen many homeowners claim mobility disability to try to avoid parking rules so they could park on the street or in driveways instead of using their garage. But it’s hard to explain why walking farther from their home is helpful.
8. DMV handicapped placards or license plates are not by themselves documentation of disability. The HOA is still permitted to seek verification of the disability, even if the person has DMV approval. Unfortunately, too many people misuse this important aid which helps the truly handicapped. HOAs can request direct written verification of the disability and necessary accommodation.
9. Some requested accommodations can be temporary, with the residence required to be restored after the disability ceases or the disabled resident moves out.
10. The Civil Rights Department, Housing and Urban Development (HUD), and the federal Department of Justice all have helpful information on these subjects.
11. Finally, have legal counsel available to review requests and to guide the HOA through the interactive process.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit potential column questions to kelly@roattorneys.com.
