What is a reasonable modification?

The Federal Fair Housing Act "FHA" provides protections for people with disabilities. In addition to a prohibition against discriminating against someone because they are disabled, the FHA has two affirmative duties for those covered by the Act. One of them is to provide a reasonable accommodation. The other is that a housing provider must permit people with disabilities to make reasonable modifications to their dwelling or the common areas at the disabled person's expense that are necessary for the disabled person to use or enjoy the dwelling.

The Americans with Disabilities Act "ADA" has a similar provision. Under the ADA, a public accommodation (usually a commercial entity) must remove architectural barriers to the place of public accommodation necessary to afford the goods, services, facilities, privileges, advantages or accommodations provided by the public accommodation to individuals with disabilities if it is readily achievable. Removal of architectural barriers are readily achievable if it can be accomplished with little cost and does not prove burdensome or substantially alter the goods or services provided by the public accommodation. Under the ADA, unlike the FHA, the public accommodation pays for the cost of barrier removal. If the barrier removal is not readily achievable, the public accommodation must normally make a reasonable accommodation to provide the goods, services, facilities, etc. to the disable person.

Happy Thanksgiving!

On this Thanksgiving Weekend, we'd like to wish you all a wonderful holiday. You may have noticed that except for this last week, it has been over a month since our last post. During this time, I haven't been idle, but most of the work has been behind the scenes. I've been setting-up the new home for Hawaii Condo Law Blog. I'll be hosting the new Hawaii Condo Law Blog at the Ekimoto & Morris website. I think you'll like the added functionality as well as the new look and feel. The switch-over will occur sometime during the beginning of the new year, but you'll continue to be able to use the http://www.hawaiicondominiumlaw.com url to access the blog even when it moves to its new home.

Many of you have already seen our book, The 2005 Director's Guide to Hawaii Community Association Law. In addition, a searchable CD version of the book will be available shortly. The Director's Guide includes an explanation on Hawaii Community Association Law written by John A. Morris as well most of the laws affecting community associations. The CD version has several extras including our legislative update, the Hawaii Condominium Fee Conversion law and bookmarks to locate key sections of the Director's Guide. Copies of the book and the CD are available to our clients. You should receive your copies of the books from your community association manager. We'll let you know how to get a copy of the CD when they're produced.

John and I are working on a major rewrite of the Director's Guide to coincide with the rewrite of the Hawaii Condominium Act. The Recodification means that many things in Hawaii Condominium Law will be changing effective July 1, 2006.

What is a reasonable accommodation?

The Federal Fair Housing Act "FHA" and the Americans with Disabilities Act "ADA" provides protections for people with disabilities. In addition to a prohibition against discriminating against someone because they are disabled, these laws have affirmative duties for those covered by the two Acts. Under the FHA, one of the affirmative duties is to permit reasonable modifications. In addition, a housing provider must make reasonable accommodations to its policies, practices or procedures if it is necessary for a disabled person to use or enjoy the dwelling.

Similarly, under the ADA, a housing provider must make reasonable accommodations to its policies, practices or procedures if it is necessary to afford the goods, services, facilities, privileges, advantages or accommodations provided by the public accommodation (usually the commercial entity) to individuals with disabilities. The ADA also contains a barrier removal requirement similar to reasonable modifications.

What is a disability?

The Federal Fair Housing Act and the Americans with Disabilities Act provides protections for people with disabilities. The Fair Housing Act uses the term, "handicap" while the Americans with Disabilities Act uses the term, "disability" but they are defined the same.

A person with a disability is someone who: (1) has a physical or mental impairment which substantially limits one or more major life activities (i.e., caring for one's self, performing manual tasks, walking, seeing, breathing, etc.); (2) has a record of such an impairment; or (3) is regarded as having such an impairment. A disability does not include a current illegal use of or addiction to a controlled substance or is a transvestite. Courts have limited what constitutes a disability in a number of ways. For instance, the courts look to whether someone's condition substantially limits a major life activity in its corrected condition. Therefore, someone who is legally blind without glasses is not disabled if they are not impaired if they were to be fitted with glasses.

Terrorism Risk Insurance Act Extension Moves Forward in Congress

The Terrorism Risk Insurance Act is scheduled to expire on December 31, 2005. However, last week both the Senate Banking Committee and the House Financial Services Committee today approved different versions of legislation that would extend TRIA for two years.

On Friday, the full Senate voted to approve the Senate version of the extension legislation. The White House has indicated support for the Senate version, but has reservations about the House version which would be more expensive. The full House of Representative is expected to vote on the House version of the extension legislation after Thanksgiving recess.

What is the Terrorism Risk Insurance Act?

The Federal Government adopted the Terrorism Risk Insurance Act (TRIA) two years ago in response to the decision of most insurers to refuse to provide terrorism insurance after the events of September 11, 2001. The law included a provision requiring insurers to make available terrorism insurance to their customers. The "make available" provisions of TRIA require that, from the date of enactment (November 26, 2002) through the last day of the second year of the Program (December 31, 2004), each insurer must make available, in all of its commercial property and casualty insurance policies, coverage for losses due to covered acts of terrorism that does not differ materially from the terms, amounts and other coverage limitations applicable to losses arising from events other than acts of terrorism. TRIA did not regulate the cost of the insurance, but it included provisions that limited the insurance industry's losses which indirectly lowered the cost of the insurance.

TRIA required that the Secretary of the Treasury determine whether the "make available" provision should be extended for an additional year. On June 18, 2004, the U.S. Treasury Department today announced its decision to extend the "make available" provisions of TRIA for a third year. Currently, the TRIA "make available" is scheduled to end on December 31, 2004.