Accommodating Tenants With Disabilities

What happens when a blind tenant with a seeing-eye dog tries to move into an apartment complex with a strict "no pets" policy? What if a tenant who walks with difficulty wants a reserved parking space next to her apartment, but she is at the bottom of the waiting list for spaces? What are the options for a tenant who is being evicted for minor damage he caused to his apartment when he had an emotional breakdown? These are among the situations when tenants with disabilities can request "reasonable accommodations."

Perhaps the tenant walked into your office. Or the landlord just received one of these requests and asks you what to do. Or maybe you have a long-time client who is a property owner and wants to be updated on the latest legal developments. In any of these situations, you will need to know what an accommodation is, who is entitled to one-and how to determine whether such a request is reasonable.

Reasonableness Defined
A reasonable accommodation is defined by the fair housing laws as a change in the landlord's rules, policies, or practices that is necessary to afford a person with a disability an opportunity to use and enjoy a dwelling. (Fair Hous. Amendments Act (FHAA), 42 U.S.C. § 3604(f)(3)(B); Cal. Fair Emp. and Hous. Act (FEHA), Cal. Gov't Code §§ 12927(c)(1), 12955.) But applying these laws is often difficult.

The Dance of Analyzing a Request
The five factors in the acronym DANCE encapsulate the elements of an accommodation case as outlined by the Ninth Circuit in the Mobile Home Park cases. (United States v. California Mobile Home Park Mgmt., 29 F.3d 1413 (1994), appeal after remand, 107 F.3d 1374 (1997).) And in truth, the back and forth interaction between a tenant and landlord regarding accommodation requests often resembles a dance.

"D" is for disability. To qualify for an accommodation, a tenant must have a disability-a mental, developmental, or physical impairment that substantially limits one or more major life activities, such as walking, seeing, hearing, working, learning, or caring for himself or herself. (42 U.S.C. § 3602(h); Cal. Gov't Code § 12955.3.) This includes all recognized mental health conditions, including personality disorders. (United States v. Massachusetts Indus. Fin. Agency, 910 F. Supp. 21 (D. Mass. 1996).) The statutes protect those with alcoholism and past, but not current, drug addiction. This statutory distinction leads to confusion over the timing of "past" and "current" drug use. The few courts that have addressed the issue offer a little guidance: a year ago is past, six weeks ago is considered current. (United States v. Southern Mgmt. Corp., 955 F.2d 914 (4th Cir. 1992); Fowler v. Borough of Westville, 97 F. Supp. 2d 602 (D.N.J. 2000).) Perhaps future litigation will specify a magic line somewhere in the middle.

A landlord who doubts that a tenant requesting the accommodation has a disability has an obligation to affirmatively ask for verification. (Hubbard v. Samson Mgmt. Corp., 994 F. Supp. 187 (S.D.N.Y. 1998).) This is an exception to the general fair housing rule that housing providers may not ask any questions about whether an applicant or tenant has a disability. (24 C.F.R. § 100.202(c).) As verification, housing providers can accept a doctor's note stating the tenant's condition is a disability, unless there are clear reasons to question the note.

"A" is for accommodation request. To trigger these fair housing law requirements, a tenant must communicate to the housing provider the need for an accommodation because of some medical condition. The tenant need not use the magic words "reasonable accommodation," nor even make the request in writing, though a written request is wise. In one case, for example, a tenant told the manager that he did not have to get rid of his cat because he was disabled, which was found to be sufficient notice for the landlord to begin the accommodation evaluation. (HUD v. Dutra, 1996 WL 657690 (HUD ALJ 1996).) However, the landlord is not required to guess that the tenant needs an accommodation. (See, HUD v. Courthouse Square Co., 2001 WL 953792 (HUD ALJ 2001).)

The request must be a change to rules or practices. If the tenant is requesting a physical change to his or her apartment, that is a "modification," not an accommodation. Although the analysis is similar, in private housing, the tenant must pay the cost of the modification and restore the premises at the end of the tenancy if the modification would make the apartment less marketable. (42 U.S.C. § 3604(f)(3)(A); Cal. Gov't Code § 12927(c)(1).) Debate continues about when a physical change to the common areas of the complex is an accommodation and when it is a modification. But courts have ruled that physically marking a handicapped parking space is an accommodation.

"N" is for necessary. The tenant must need the accommodation because of his or her disability. There must be a causal nexus between the symptoms of the disability and the accommodation requested-and many plaintiffs have lost their cases by not making this connection clear. (Gavin v. Spring Ridge Conservancy, Inc., 934 F. Supp. 685 (D. Md. 1995) (plaintiff did not show why a normal-size shed was insufficient to house his medical supplies nor why he needed a bigger shed as an accommodation).)

"C" is for cost. An accommodation that imposes an undue financial or administrative burden on the landlord is not deemed reasonable. (Green v. Housing Authority, 994 F. Supp. 1253 (D. Ore. 1998). The key word here is "undue," which will be different for a huge corporate-owned complex than for a "mom and pop" fourplex. For example, one court found that requiring a landlord to replace an elevator, which would cost a minimum of $25,000, was not reasonable. (Rodriguez v. 551 West 157th Street Owners Corp., 992 F. Supp. 385 (S.D.N.Y. 1998).) However, the Ninth Circuit has made clear that landlords must absorb reasonable costs. (Giebeler v. M&B Associates, 343 F.3d 1143, 1152 (9th Cir. 2003).

"E" is for effecting a fundamental change. An accommodation that would require a landlord to fundamentally alter the nature of his or her business is not reasonable. For example, a landlord who does not want to participate in government programs may not be required to accept Section 8 certificates as an accommodation because that would fundamentally change the nature of the landlord's housing business. (Salute v. Stratford Greens Garden Apts., 918 F. Supp. 660 (E.D.N.Y. 1996), aff'd, 136 F.3d 293 (2nd Cir. 1998).

If a tenant has a disability, has made an accommodation request, and has demonstrated that the accommodation is necessary, and the landlord cannot show that the accommodation would impose an undue cost or effect a fundamental change, the landlord must grant the accommodation. Failing to grant an accommodation that meets all these requirements constitutes illegal discrimination. If the accommodation requested does not meet all the requirements-if it costs too much, for example-the landlord should inform the tenant why it is being denied, so the tenant can propose an alternate, less costly accommodation. This is the accommodation dance.

Examples of Accommodations
In the years since these requirements have existed, the courts have addressed only some of the potential accommodation scenarios. A number of courts have considered claims relating to accommodations for service animals. (Green v. Hous. Auth., 994 F. Supp. 1253 (D. Or. 1998); Bronk v. Ineichen, 54 F.3d 891 (7th Cir. 1996); see also, 24 C.F.R. § 100.204(b).) Because of the relatively small impact on the landlord, courts have continually required landlords to make exceptions to "no pet" policies to allow service animals. Service animals include not only seeing-eye dogs, but also companion animals that provide emotional support to people who have mental disabilities. (Majors v. Hous. Auth., 652 F.2d 454 (5th Cir. 1981); Whittier Terrace Assoc. v. Hampshire, 532 N.E.2d 712 (Mass. App. 1989).

Parking spaces are another hot topic. Landlords are often uncertain of their options when a disabled person who needs a space is lower on the waiting list than nondisabled tenants who may have been waiting for years. However, the law is clear that landlords must move the disabled person who needs the space to the top of the waiting list. (Shapiro v. Cadman Towers, 844 F. Supp. 116 (E.D.N.Y. 1994); see also, Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891 (7th Cir. 1996); 24 C.F.R. § 100.204.) Not having a close space is a mere inconvenience for the nondisabled tenant; however, it is often an insurmountable barrier for the disabled tenant.

The Ninth Circuit has recently addressed accommodations relating to financial consequences of a disability. In Giebler v. M&B Assoc., a disabled applicant receiving Social Security disability benefits did not meet the landlord's "three times the rent" income requirement despite a good rental payment history. (343 F. 3d 1143, 1145 (2003).) He requested that his financially qualified mother be allowed to co-sign as an accommodation of his disability, which the landlord refused to do. On appeal, the Ninth Circuit found that Giebler's inability to meet the income requirement was directly caused by his disability because he would have met the minimum requirements based on his predisability income. The court referred to a recent U.S. Supreme Court case, U.S. Airways v. Barnett (535 U.S. 391 (2002)), holding that barriers for both disabled and nondisabled people, such as seniority systems, can be the subject of reasonable accommodations under the Americans With Disabilities Act or ADA (42 U.S.C. § 12182). Though this decision somewhat expands the necessity "nexus" discussed previously to include needs stemming from the financial consequences of being disabled, the reasonableness factors remain. Giebler had a proven rental payment history and was offering the landlord additional security of a co-signor with little cost required. On the other hand, courts are very unlikely to require a landlord to lower rent as an accommodation for a tenant on disability benefits.

The accommodation issue may also arise when a tenant is being evicted for behavior related to his or her disability. In one case, for example, a person with schizophrenia had hallucinations and, as a result, hit the wall repeatedly with a broomstick, causing minor damage. (Citywide Assocs. v. Penfield, 2 FH-FL 18,079 (Mass. Hous. Ct. 1989).) The landlord, who normally evicts tenants who cause this kind of damage, proceeded with an eviction. The tenant explained that the damage was caused by the symptoms of her disability and agreed to participate in a new counseling program. The court determined that the landlord must make an accommodation by stopping the eviction. Tenants whose behavior seriously disturbs neighbors will be eligible for accommodations only if they can show that the disturbance has stopped or will be ameliorated.

The FHAA specifically states that housing providers are not obliged to rent to tenants who pose direct threats of harming people or causing substantial property damages. (42 U.S.C. § 3604(f)(9).) However, the courts have held that landlords must consider accommodations for all behavior caused by a disability, even threats or violence. (Roe v. Hous. Auth., 909 F. Supp. 814 (D. Colo. 1995); Roe v. Sugar River Mills Assoc., 820 F. Supp. 636 (D.N.H. 1993).) At the same time, the greater the harm caused by the behavior, the greater the assurances of change must be in order before the accommodation will be considered "reasonable."

The Long Reach of the Law
Any part of the application procedure, tenancy, or eviction process can be the subject of a reasonable accommodation request. Although the statutory language refers to accommodations that allow the tenant to "use and enjoy the dwelling," accommodations have repeatedly been considered valid even when a tenant is moving out of an apartment. Courts have sanctioned accommodations such as releasing a tenant from a lease early (Samuelson v. Mid-Atlantic Realty, 947 F. Supp. 756 (D. Del. 1996)), or postponing an eviction action (Anast v. Commonwealth Apts., 956 F. Supp. 792 (N.D. Ill. 1997).

Also, a tenant can bring up an accommodation request at any time in the eviction process. If a landlord knows of a tenant's disability and need for accommodation before the tenant is physically evicted-even if a notice to vacate has already been given-the landlord must consider the accommodation. (Radecki v. Joura, 114 F.3d 115 (8th Cir. 1997).)

Because accommodations depend on the specific symptoms of a tenant's disability and the requirements of the housing, no exhaustive list is possible. For example, courts have required landlords to give tenants with disabilities more time to comply with fire code requirements (Schuett Inv. Co. v. Anderson, 386 N.W.2d 249 (Minn. App. 1986)); to move disabled tenants to first floor apartments (Roseborough v. Cottonwood Apts., 1996 WL 490717 (N.D. Ill. 1996)); and to keep sidewalks clear of snow for the safety of the disabled tenant (Lindsey v. Nob Hill Partnership, 539 N.W.2d 134 (Wis. Ct. App. 1995).)

The main two laws in this area are the federal Fair Housing Amendments Act (42 U.S.C. § 3601) and California's Fair Employment and Housing Act (Cal. Gov't Code § 12955). There is also a California statute specifically addressing accommodations (Cal. Civ. Code § 54.1) and federally funded housing providers are also covered by Section 504 of the Rehabilitation Act (29 U.S.C. § 794).

Looking at these laws in combination, almost all landlords or lessors are required to make reasonable accommodations. The only exception is for owners who rent out only one room in a house they occupy. (Cal. Gov't Code § 12927(c)(2)(A).) Condominium homeowners' associations and mobile home parks are also obligated to make reasonable accommodations, even when the accommodation may violate an association's covenants or affect commonly owned areas of the property. (Gittleman v. Woodhaven Condo. Ass'n, 972 F. Supp. 894 (D.N.J. 1997).)
People who run some types of organizations-for example, residential drug treatment, transitional housing programs, board and care facilities-feel that they are providing services rather than housing. However, because of the fair housing statutes' broad definition of "dwelling," almost anywhere that a person spends the night is covered. (42 U.S.C. § 3602(b); Cal. Gov't Code § 12927(d).) This includes nursing homes (Hovsons v. Township of Brick, 89 F.3d 1096 (3rd Cir. 1996)); homeless shelters (Turning Point v. City of Caldwell, 74 F.3d 941 (9th Cir. 1996), and timeshares (Louisiana ACORN Fair Housing v. Quarter House, 952 F. Supp. 352 (E.D. La. 1997).)

Some housing providers worry that granting a requested accommodation will get them in trouble with government authorities, such as code enforcement agencies, zoning boards, HUD, or fire inspectors. These landlords feel that they are stuck between the proverbial rock and hard place. However, these governmental agencies are obligated under the both the fair housing laws and the ADA to themselves make accommodations. A landlord may ask for an accommodation from these agencies on behalf of disabled tenants and has standing to sue if he or she is harmed by the denial of the accommodation. (San Pedro Hotel v. City of Los Angeles, 159 F. 3d 470 (9th Cir. 1998).)

Litigation Strategy
Reasonable accommodation cases present a perfect opportunity for preventive work. Landlords with written accommodation policies and procedures rarely find themselves in trouble. Attorneys who are consulted early can advise their clients about what accommodations to offer before irreparable harm occurs.

Within one year of an accommodation denial, tenants can file administrative claims with HUD's fair housing office or the Department of Fair Employment and Housing (DFEH). These agencies investigate claims, attempt conciliation, and, if discrimination is found, proceed to enforcement-typically a hearing before an administrative law judge. The administrative processes provide ample opportunities for negotiation, especially since the investigation stage can be quite lengthy. However, unlike employment discrimination claims, filing with an administrative agency is not an exhaustion requirement before litigation. Notably, the California Supreme Court recently decided that DFEH has the authority to award emotional distress damages without running afoul of the judicial powers clause. (Konig v. FEHC, 28 Cal. 4th 743 (2002).)

Of course, some accommodation cases will proceed to litigation. The statute of limitations for both FHAA and FEHA is two years-with an open question about whether the two years is from the first time or the last time the request is made. The statute is tolled for any time a claim was with HUD or DFEH. In reality, these cases are almost never resolved by a motion to dismiss because of the requirement of the highly factual "reasonableness" determination. For the same reason, defendants' summary judgment motions require strong evidentiary support that one of the necessary elements is absent.

At trial, the parties must present evidence regarding the elements described above. Clearly, the plaintiff must prove that he or she has a disability and therefore needs the accommodation requested. The Ninth Circuit has recently shed more light on the unresolved issue of which party bears the burden regarding an accommodation's reasonableness. Depending on whether a court follows precedent of Section 504 of the Rehabilitation Act or the ADA, the plaintiff bears the initial burden of showing that the accommodation either is possible (Section 504) or seems reasonable on its face (ADA). (Giebeler, 343 F.3d at 1156.) If the plaintiff meets this burden, the defendant bears the burden of showing that the accommodation is not reasonable in the particular case.

If an accommodation case proceeds to judgment for the plaintiff, damages can include injunctive relief and compensatory damages-including emotional distress, as well as punitive damages, and attorney fees. (42 U.S.C. § 3613.) As with other civil rights statutes, the attorney fee provision is not reciprocal.

Kerstin Arusha is directing attorney of the Fair Housing Law Project (FHLP), a program of the not-for-profit Law Foundation of Silicon Valley providing free legal representation to people who have experienced housing discrimination in Santa Clara County.

---