Issue link: https://read.dmtmag.com/i/406201
NOVEMBER 2014 11 THE JOURNAL 549,215 MORE TRAFFIC, MORE LEADS, MORE SALES 800.397.2158 | mhvillage.com/reachmore There is no bright line test establishing what might be a reasonable financial accommoda- tion. Courts are guided by the goals of FHAA: "to protect the right of handicapped persons to live in the residence of their choice in the com- munity," and "to end the unnecessary exclu- sion of persons with handicaps from the American mainstream." 7 So how would this work in practice? There are three factors to consider. First, the prospective homeowner/applicant requesting an accommodation must demon- strate he or she has a handicap recognized by FHAA. Under FHAA a person's (disability) handicap means: (1) A physical or mental impairment which substantially limits one or more of such person's major life activities, (2) A record of having such an impairment, or (3) Being regarded as having such an im- pairment, (4) But does not include current illegal use of or addiction to a controlled substance as de- fined under federal law. 8 HUD has broadly defined a person's major life activities as, "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 9 Thus, an applicant's mental or physical impairment that substantially limits his/her ability to work and/or earn an income could be a recognized consequence of a handi- cap under FHAA. To satisfy a prospective resident's burden of proof, an applicant requesting a financial ac- commodation would need to disclose the nature of his or her impairment placing management on actual notice. [For purposes of this article it is assumed that there is no material dispute over a claimed disability or handicap.] Next, management would ask/determine if the substantial impairment is the cause of an ap- plicant's inability to satisfy the community's in- come standards. This factor, like a claimed disability is usually readily apparent. Again, this article assumes that an applicant's disability is a cause of the applicant's economic circum- stances. The pivotal determination is whether the fi- nancial accommodation requested is reasonable in light of the risk that the prospective home- owner may later default on his/her financial ob- ligations to the community, or cause some other undue financial risk, and the extent to which the accommodation may increase manage- ment's administrative burden. In other words, will the requested accommodation impose on the community owner an undue financial risk and/or administrative burden that would justify declining a requested financial accommodation? An example of a request that could be subject to the above three factors is a community's pol- icy and practice of prohibiting acceptance of "co-signers" to qualify an applicant for residency when the applicant alone fails to meet the com- munity's income qualifications. In a leading case, 10 an applicant who all par- ties agreed was disabled and unemployable within the meaning of FHAA and who received government subsidies, applied to rent an apart- ment. The apartment was less expensive than his prior apartment and closer to his mother from whom he also received support. His dis- ability income alone was insufficient to meet management's requirement of three times the monthly rent. His mother, who did satisfy the income requirements, applied as "co-signer" to "rent the apartment for her son," but would not reside on site. The applicant son requested that as an \ 19