FAIR HOUSING AND “REASONABLE ACCOMMODATION”

By Bob Cain
www.rentalprop.com
Copyright 2000 Cain Publications, Inc., 
used by permission

This piece of the Fair Housing Law is probably the most convoluted, confusing one of all for landlords to deal with. It requires that you make special provisions for people with handicaps, defined as "a physical or mental impairment which substantially limits one or more of [a] person's major life activities; a record of having such an impairment; or being regarded as having such an impairment." US Fair Housing Act.

Disabled people must be provided "reasonable accommodation" so that they will be able to enjoy their dwelling in the same way as a non-disabled person.  Most landlords realize that we must allow physically disabled people to make changes in the unit at their own expense so that they can more easily use it.  That might include grab bars in showers and tubs, lower light switches, lower counter tops, different door hinges, etc.  We can also require a deposit that would pay for putting the property back the way it was when they move.

If it were only that simple. The law has been carried to the extreme to provide handicapped people the same "enjoyment" as non-handicapped people. One example would be in the assignment of parking spaces.  Many apartment complexes assign parking spots in order of seniority.  So you have John Smith, who has lived in the complex going on 20 years now, and who has earned a spot in front of his unit.  Along comes a new, disabled tenant who says that because he is physically disabled he needs a parking spot right in front of his door, the same one that good old John Smith is now entitled to.  In order to provide "reasonable accommodation" to this new person, you have to kick John out of his hard-earned spot and give it to the new guy.

One particular court case illustrates exactly that. An apartment owner in Cadman Towers, a cooperative apartment complex in Brooklyn, NY, Ms. Shapiro, had multiple sclerosis. As a result she had fatigue, severe headaches, loss of coordination and difficulty walking.  Sometimes she even needed a wheelchair.

Indoor parking spaces were at a premium at Cadman Towers. Their policy was to provide owners with parking on a first-come, first-served basis. You got an indoor parking spot by putting your name on a waiting list and waiting your turn.

Even though Shapiro had a handicapped-parking sticker, she said that parking on the street was difficult and that a commercial garage was too far away. Because of these delays in finding parking, she would often have urinary "accidents."

Shapiro asked the complex for an indoor parking spot. The board of directors turned her down and said she'd have to wait her turn, just like everybody else. Shapiro's attorney wrote the board asking for reasonable accommodation and an immediate spot for Shapiro. The board replied that she'd get "reasonably accommodated" when her name came to the top of the list.

Shapiro filed a Fair Housing complaint. After its investigation HUD found evidence of discrimination and filed a charge against Cadman Towers. Shapiro sued and asked the court to order the complex to give her a parking spot immediately, even before the trial.

After hearing testimony, the court agreed. Cadman Towers appealed, but lost. Under the Fair Housing Act, the court ruled, the complex had to make reasonable accommodations so Shapiro could use and enjoy her apartment. "Reasonable accommodations" could include reserving parking spaces for mobility-impaired tenants as a "modest" adjustment to accommodate them.

Citation: Shapiro v. Cadman Towers, 51 F.3d 328 (New York) 1995.

If it were only the physically disabled, there would be few problems.  But the "disabled" also include alcoholics, recovering drug addicts, people with various mental disorders, and people with "behavior" disorders.

As a landlord, you are not required to have a crystal ball to discover the "reasonable accommodation" required by any of your tenants, they must tell you, usually in writing.  (In fact, you cannot even offer "reasonable accommodation": to do so is in itself a probable violation of the Fair Housing Law.) But once they tell you, you must change your policies, procedures and rules, and make structural modifications in common areas to accommodate these folks.

One example would be for a mentally disabled person who was creating a disturbance for other residents.  Normally, you would do one of two things. One is that you might send the tenant official warnings that his behavior was outside the bounds of the rules of the complex. Or you might serve such a person with a ten-day or 14-day notice (depending on your state) to clean up his behavior or move.  If he didn't change his behavior, you would evict him.

What happens is that you serve the notice to comply with the rental agreement and he takes the notice to his psychiatrist who refers him to an attorney.  You get a letter from the attorney saying that the tenant is under the care of a physician for the problem and is beginning a program of medication that should correct the problem.  Thus, if you proceed with the eviction, you could be violating the Fair Housing law.

In this case, you would probably have to allow a reasonable length of time for the medication to improve the behavior of the tenant.  You can also require a letter from the psychiatrist explaining that this tenant is having a problem that is under treatment.

No, you don't have to tolerate it forever.  You only have to make "reasonable accommodation" for this person.  What is reasonable?  Good question.  For that answer you had better speak with your attorney.  (That is one thing that the Fair Housing law has done: made lots of work for attorneys.)

You are not required to make any changes if they would change the nature of your housing program.  For example you need not supply an on-site psychologist. You also need not make any changes if it would place an undue financial or administrative burden on you.

In summary:

1. Never suggest that you could do anything to provide "reasonable accommodation" to a tenant, require that he or she make the request.

2. Require that the tenants supply proof that reasonable accommodation is necessary (as in the case of strange behavior), and that they are not just common, run-of-the-mill bad tenants.

3. If you have a question or concern, get legal advice to find out what your rights and responsibilities are and to make sure you are acting properly.

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Robert Cain is a nationally-recognized speaker and writer on property management and real estate issues. For a free sample copy of the Rental Property Reporter call 800-654-5456 or visit their web site at www.rentalprop.com.

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Related articles:

http://www.landlord.com/the_case_for_small_time_discrimination.htm

http://www.landlord.com/how_fair_housing_affect_marketing.htm

http://www.landlord.com/ten_fair_housing_safety_features.htm

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