When Accessibility Meets Complexity

When a resident asks for an accommodation, the response may not be so straightforward. Your co-op or condo board will need to approach each request thoughtfully, legally and compassionately.  Daniel Finger, partner at the law firm Finger and Finger, offers crucial insights into determining what's "reasonable," avoiding potential discrimination complaints, and balancing the needs of all residents. His conversation with Habitat's Emily Myers covers everything from elevator installations to emotional support animals, emphasizing the importance of an interactive, case-by-case approach. Whether you're dealing with visible or invisible disabilities, this episode provides practical strategies to navigate complex accommodation requests while protecting your board's interests and supporting your community's diverse needs.

The business of running a building is demanding work that requires making endless decisions — some that can quickly lead your board into a quagmire of legal difficulties. Legal Talk interviews New York's leading co-op/condo attorneys to find solutions, and get some guidance, on these challenges. For more co-op and condo insights, sign up to receive Habitat's free newsletters or become a Habitat subscriber today!

Transcript

Emily Myers: Welcome to Legal Talk, a conversation about the governance issues facing New York's co-op and condo boards. I'm Emily Myers with Habitat, the magazine for New York City's co-op and condo board directors. And I'm joined by Daniel Finger, partner at the law firm Finger and Finger. 

When shareholders ask for reasonable accommodations, some are easier to facilitate than others, but they can also generate conflict if there's a misunderstanding about why the accommodation is needed.

Daniel, what are the most common issues that arise when residents request accommodations? 

Daniel Finger: Probably the most common is pet or dog issues. But it's a variety of things. Parking as well. Those are probably the two most common in terms of the accommodations. Modifications is the other part of it, which can be anything structural, any structural change to the unit, the premises, outlets, cabinets, grab bars in bathrooms, things like that. Entrances to the building, entrances to the apartment, ramps. 

Emily Myers: So can you explain the difference between accommodations for pets and parking versus these structural modifications in terms of how a board should approach them?

Daniel Finger: Okay, the first thing to understand is that an accommodation is a change or exception or an adjustment to a rule, policy or practice. So anything that has to do with the rules of the cooperative or condominium which might be necessary. And everything is to try to give the individuals the equal opportunity to use and enjoy their homes, notwithstanding any disability they might have. With a reasonable a modification, it's a structural change, so literally it's something that requires some kind of structural change to the premises, whether it's their particular unit or the common areas.

Emily Myers: Okay. So where do issues arise for boards in these situations? 

Daniel Finger: The most important thing is trying to figure out what reasonable means. And unfortunately that's something that is always a case by case basis and fact specific, depending on what's being asked.

Reasonable usually means having no undue financial or administrative burden, and no fundamental change in the nature of a provider's operations. But that could depend on a lot of things. If you're talking about modifications, the layout of the building. It could depend on the finances of the building; you can't be expected to spend a million dollars on a project if your annual budget is only 50,000 most likely. So that's the first thing they have to understand. If the accommodation is reasonable, then they have to do their best to provide it.

The other thing that they have to understand is, or that's very difficult, is figuring out what they can and can't ask to figure out if the person needs the accommodation. And getting to that reasonable threshold to determine if it's warranted. In pet cases , in the dog cases there's a lot of nuances in these accommodations.

And figuring out, getting some information on their disability, it can be a lot easier with modifications because you don't really need to ask as much of what the disability is a lot of times, 'cause you can tell and if you can tell what the disability is, if you can tell they're in a wheelchair, you can tell that they're blind or whatever the disability might be.

If it's open and obvious, then you don't really need to ask for any medical or , any backup. Information or documentation , so you know they need it. Whereas with accommodations, especially with, like emotional support, animals, things like that. It can be a lot more difficult because it's not open and obvious.

You don't know from just seeing the person that they have this disability, which doesn't mean they don't have it and doesn't mean they're not entitled to the accommodation. But that's where it can be difficult to figure out what you need to ask. 

And the other thing that's difficult, especially with the modifications where it might be that what they're asking isn't necessarily reasonable, but you can't just automatically say no, you have to still go through what they call an interactive process and try to engage in some good faith negotiations to determine if, even though you can't necessarily grant the request they're making.

Maybe there's something else you can do or maybe there's something else that can be done. Everybody can work together and try to figure some other way out of assisting the person and helping them out with whatever their issue is. 

Emily Myers: Do you have any examples of cases where an accommodation perhaps couldn't be granted due to either practical or legal limitations and how the board dealt with it?

Daniel Finger: I had one case where somebody wanted an elevator installed in the building that just simply wasn't really possible. That's a pretty obvious one. Ramps can be difficult. I had a building where somebody wanted a ramp, but just by code it couldn't be done in the location or the way.

And I think ultimately, I don't think it was done, but they did try to negotiate with the person or try to work with the person, see if there was something else that could be done. Another kind of common one with the modifications: chair lifts in buildings, so people wanna have the stairwell chair lifts, and the difficulty with that, is a lot of times, especially in older buildings, the stairways are not necessarily wide. They're wide enough as they are, but they're not necessarily wide enough if you add in a chairlift to be code compliant and modifications especially have to be, they're supposed to be code compliant. So when you're putting in a chairlift, for example, with a staircase, you have to be able to get a stretcher up and down the staircase still.

So the chairlift would take up usually about a foot of space. So now if the EMTs or ambulance can't get a stretcher up, then it's no longer code compliant. That's something that has to be looked at. And a lot of times engineers might need to be inquired about or at least look at the spec sheets of what they're asking for so that the board could figure out if it's possible to install that type of device in those stairways. That one has come up a few times. 

Emily Myers: And so what are the risks then for boards if they can't do the modifications that are being requested? 

Daniel Finger: The risks with any of these things, with accommodations or modifications, the risk is if somebody files a complaint with the Human Rights Commission.

And you have to deal with that kind of investigation. That's the main risk. As long as they go through the process and they don't just say no and, reject somebody's request , which is probably reasonable for a discriminatory reason, i.e., they just don't want do it and they don't wanna help somebody who's disabled or whatever.

As long as that's not the case. They should be okay. But , like I said, the biggest risk is that somebody files a complaint and they have to deal with that complaint. That's usually the biggest risk. 

Emily Myers: I imagine also there may be some tension within the building if somebody is given a parking space when other people are waiting and perhaps that disability isn't visible.

How do boards navigate that kind of nuance? 

Daniel Finger: Yeah that's very tough. And that happens also, not just with parking, which is an excellent point, but also with the pets because there's a lot of buildings that are no pets and it's hard to navigate because the board can't really discuss the nature of the person's disability or why they were given this accommodation, or really even that they were given an accommodation.

The answer that we tell our boards is really, they just have to tell the people we're aware of the situation. It's something that the board had to make an accommodation for and that's it. And you really can't go any further than that. But it definitely has issues, and one question I get a lot with the pets is what if I'm allergic?

I'm allergic to dogs. Why should they have the right over me? Why is their right to have their emotional support animal trump my right. to not be exposed to these allergens when I bought in this building thinking it was no pets and I wouldn't have to worry about it.

And the unfortunate answer is because the federal government and the state government have basically come down on the side that it's more important in the first instance to grant the accommodation, and then maybe the board then just has to get, whether it's a cleaning company or their super, whoever does the cleaning to do additional cleanings and do something to try to accommodate both to try to make it so that the allergens don't spread or that they're not exposed to them.

, the board would have to investigate and look into it to try to accommodate everybody. And it's unfortunate there's not a better answer than that. But that's just the world we live in right now. 

Emily Myers: So what are then the takeaways for boards on this issue?

Daniel Finger: The takeaways is, number one, every request has to be judged on its own merits. They should be considered on a case by case basis. Terms of when you're evaluating them, you can ask for evidence if the need is not obvious. If it's obvious, don't ask. 

Emily Myers: Can you just clarify why you should not ask?

Daniel Finger: It's against the law to ask if the disability is not visible or it is, can be construed as discrimination. 

 If the disability is obvious, and you start asking and pressuring them to give you medical and give you background and a basis for why they need their accommodation, then it can be construed as discriminatory.

Daniel Finger: If it's not an obvious disability, then of course you can ask for a note. It usually is a doctor's note, therapist, social worker, if we're talking about those kind of things, but it doesn't have to be. It can be anybody that's familiar with the person's condition. You're not allowed to ask for medical records. You're not allowed to ask to talk to their doctor , , you don't wanna feel like you're pressuring them because that can be just construed as discrimination.

Emily Myers: And there's a lot of other examples of, ways that accommodations and modifications come into play. Those are the main ones though. 

So summing up, how would you advise boards to approach this issue?

Daniel Finger: So, again, like I said and there's one thing I wanna add in here, but like I said, you gotta approach it on a case by case basis. Ask the person to give you the information. We like to get the information in writing. It's not required. We always think it's a good idea because that way there's no confusion over what they submitted, what they told you, what their request was.

If it's in writing, it's usually more clear as to what their request was. One other thing to keep in mind, and this is something that's different in New York City and then outside of New York City. In New York City, the cost is gonna be on the co-op, co-op or condo, really, whether it's in the common areas or in the apartment.

The cost is gonna be on the board for the accommodation. Condo's slightly different, but basically the cost is gonna be on the landlord or the co-op no matter where it is. In New York State and everywhere else outside of New York City, the cost is on the board if it's in the common areas, but it's on the resident if it's within their apartment.

With accommodations, it's not really an issue because most accommodations don't have a cost. If they do, parking, whatever, that's usually something the board would have to take care of. But that's more of a modifications thing. But basically, like I said, the most important things are, yes, you should be trying to look for a way that you can accommodate them, if it's at all possible. You should be working with them to try to see if there's something you can do. Unfortunately with the service animals it's something that, people are gonna have a right to. There's a lot of issues with that. I could talk on that for a long time. Virtually every building we represent either has dealt with it recently or is dealing with it. And really, there's no such thing as a no pet building anymore because of that. 

Emily Myers: Great, Daniel, lots of good information for boards there. Thank you. 

Daniel Finger: Thank you very much.

Appreciate it. 

Emily Myers: Daniel Finger, partner at the law firm Finger and Finger.