The Fair Housing Act (FHA) prohibits housing providers from discriminating against applicants or residents because of his/her disability or the disability of anyone associated with them. Under the FHA, housing providers may not treat disabled persons less favorably than others because of their disability. The FHA provides individuals with disabilities the opportunity to live in traditional community settings by removing obstacles that hinder independent living and guarantees people with disabilities the right to opportunity in housing. (42 U.S.C. § 3604.) The FHA requires owners and operators to reasonably accommodate and reasonably modify the property to meet the needs of disabled residents.
A.) What Qualifies as a Disability?
The FHA defines a person with a disability as (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment. The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus (HIV) infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism. The term “substantially limits” suggests that the limitation is “significant” or “to a large degree.” The term “major life activity” means those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. This list of major life activities is not exhaustive.
B.) Reasonable Accommodation
One of the many protections of the FHA is the right of disabled individuals to request a reasonable accommodation in the rules, policies, practices, or services of a housing provider. A reasonable accommodation request is appropriate when it is necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. This also applies to prospective residents seeking to rent a dwelling.
Reasonable accommodations are not required to be approved because the resident or the prospective resident wants or prefers it. There may be multiple methods of effectively achieving equal access for a disabled individual. This is the sole purpose of the interactive process with an individual’s request for a reasonable accommodation, which allows housing providers reasonable alternatives that may be effective in meeting the person’s disability-related needs.
Recently, this issue has become prevalent with Fair Housing Testers seeking an American Sign Language (ASL) Interpreter be present during a prospective resident’s tour or leasing of a dwelling. Property owners participating in federally subsidized housing may be required to meet a more stringent “effective communication” regulatory standard (property owners are encouraged to consult with counsel to understand which regulations apply to each federally subsidized property or program), which could require an ASL Interpreter, but no such requirement is found in the Fair Housing Act. For non-federally subsidized housing, video chatting programs, a family/friend interpreter, or exchanging notes, could all be sufficient reasonable accommodations for an individual who is hearing impaired. At which point, the burden shifts to the individual seeking a reasonable accommodation to demonstrate why those alternatives are insufficient to provide equal and meaningful access to the property.
According to a HUD and DOJ Joint Statement, “There may be instances where a provider believes that, while the accommodation requested by an individual is reasonable, there is an alternative accommodation that would be equally effective in meeting the individual’s disability-related needs. In such a circumstance, the provider should discuss with the individual if she is willing to accept the alternative accommodation.”
Owners and operators may not maintain a blanket policy regarding reasonable accommodation requests. Instead, each request must be considered on a case-by-case basis to determine if granting the request is necessary to afford the disabled person the use and enjoyment of his/her dwelling. Owners and operators may not require the disabled resident to use any particular forms or procedures and may not require that the request be made in writing or at any specific time or place.
Before denying a request, an owner or operator must engage in an interactive dialogue with the individual requesting an accommodation to explore how it can be granted. An owner or operator should never be hostile or harassing toward the disabled person (or his/her spokesperson) as the owner or operator may be found to have failed to engage in the interactive process. Moreover, such conduct also may be deemed illegal retaliation in violation of the FHA. An owner or operator must provide a prompt response to the requestor. Any delay may be deemed a failure to provide a reasonable accommodation.
An owner or operator may deny a reasonable accommodation request if the request was not made on behalf of a person with a disability or if there is no disability-related need for the accommodation. S/he may also deny a request if the request is not reasonable. An accommodation request is not reasonable if it imposes a fundamental alteration in the nature of the program or an undue financial or administrative burden on the owner or operator. This does not mean that a reasonable accommodation request may not include any costs to the owner or operator. However, any costs must be reasonable. For example, if a resident with a mobility impairment requests a parking space reserved near his/her front door, the owner or operator must pay the cost for any signage. However, if that resident requests an elevator be installed so s/he can access a second-floor apartment, such cost more likely would be unreasonable. Another example of a reasonable accommodation is granting a variance from a “two-key per resident” policy, whereby the owner or operator issues an additional key to a caretaker or nurse whose care is necessary for a resident to maintain independent status.
Reasonable accommodation does not include or require the owner or operator to reduce rent or provide additional services to a disabled resident over and above those already given to all other residents.
C.) Reasonable Modification
Discrimination against a disabled person includes the refusal to permit reasonable modifications of an existing premises at the expense of the disabled person if such modifications may be necessary to afford the person full enjoyment of the premises. Modification refers primarily to structural changes to interiors and exteriors of dwellings and common and public use areas. A request for modification may be made any time during the tenancy.
To show that a requested modification may be necessary, there must be an identifiable relationship, or nexus, between the requested modification and the individual’s disability.
Further, the modification must be reasonable. Examples of modifications that typically are reasonable include widening doorways to make rooms more accessible for persons in wheelchairs; installing grab bars in bathrooms; lowering kitchen cabinets to a height suitable for persons in wheelchairs; adding a ramp to make a primary entrance accessible for persons in wheelchairs; or altering a walkway to provide access to a public or common use area. These examples of reasonable modifications are not exhaustive.
The owner or operator, where it is reasonable to do so, may condition permission for a modification to the premises on the resident’s agreement to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. However, modifications that do not reduce a residential unit’s market value or attractiveness need not be restored to their original condition upon termination of the tenancy. Such changes might include widened doorways and lowered light switches. Moreover, the resident may not be required to restore any modifications made to the exterior of the building, such as ramps to the front door of the dwelling or modifications to laundry rooms. Where it is necessary to ensure with reasonable certainty that funds will be available to pay for restorations at the end of the tenancy, the owner or operator may negotiate as part of such restoration agreement a provision requiring the resident to pay into an interest-bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of the restoration. The interest in any such account accrues to the benefit of the resident, and any money left in the account after completion of the restorative work must be returned to the resident.
As stated above, it is the resident’s responsibility to pay for modifications to the premises. Accompanied by the resident’s responsibility to pay for the modifications is his/her right to choose the contractor who will perform the modifications. An owner or operator may stipulate that permission to modify the property will only be granted if the resident provides: (1) a reasonable description of the proposed modifications; (2) assurance that the modifications will be conducted by a professional, and; (3) assurance that any required work permits will be obtained. However, owners and operators may want to consider waiving the requirement that residents pay for these modifications in exchange for control over the means, method, and personnel for making the modifications.
Owners and operators may not increase the required security deposit for disabled residents.
D.) Law Enforcement Animals
Unlike Emotional Support Animals and Service Animals, property owners are not required by law to give special accommodations to law enforcement officers who possess animals that aid in their occupation (i.e. police K-9). This includes a property’s breed restrictions. For example, if a property prohibits German Shepherds, there is no requirement that a property owner accept the law enforcement officer’s German Shepard K-9. Additionally, there are no prohibitions against charging a fee, or monthly pet rent for a law enforcement officers’ animal.
While property owners may want to accommodate law enforcement officers due to potential benefits to the community, there are no regulations in federal or state law requiring special treatment for these individuals or residents at this time.
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