Accommodating Tenants With Disabilities
California Lawyer

Accommodating Tenants With Disabilities

August 2004

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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.


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Reader Comments

Robert Simon - May 31, 2012
this is good so far. due you have a complaint form
Daniel Howe - June 18, 2012
Great article. One correction: both the Fair Housing Act and Section 504 enabling regs (28 C.F.R. § 35.150(a)(3) and 24 C.F.R. § 8.23(b)(1), respectively) indicate that it is not "undue financial or administrative burden" but rather "undue financial and administrative burden". The latter wording, with the word "and", creates a more stringent standard for the housing provider and greater protection for the person with a disability requesting an accommodation or modification.
grace simpson - July 17, 2012
Is it legal for manager at an apartmentcomplex to request 3 times the rent to have an apartment rented out to you as getting only SSI?
Mary McCullar - September 15, 2012
live in rental property with over 15 steps. My Doctor want to do (2) knee replacements due to medical docomentation . I need to bump a low income waiting list . How do i go about this and to what agency .
Gary Los Angeles - October 22, 2012
Los Angeles seems to be extremely lacking in honest caring lawyer-attorneys and support-agencies for honest good-willed unemployed low-income disabled-ill renters-tenants-citizens who experience subtle-covert discrimination-abuse by their landlords. Where is legitimate legal help-support against big wealthy powerful landlords????
Curtis - January 3, 2013
Supported by a letter from a doctor, a tenant of mine is claiming that because of his mental health/diability a animal is required to live in with him in his apartment. Is there any merit in this, is there a specific law that supports this? Any information would be appreciated. Best Regards, Curtis
Marlin Costello - January 17, 2013
done
Marlin Costello - January 17, 2013
done
Lillie - May 3, 2013
The DFEH in Los Angeles is a joke. My request for reasonable accommodation was denied by landlord, being allowed to leave the front door of the building open for my 80 year old mother to return from a trip in an ACCess van when she has no PA with her.The landlord said no way. The DFEH after 2 years of taking away my mothers small fraction of independence left, wants me to sign a conciliation. No accountability at all. Ridiculous, I even asked for the landlord to be made to attend seminars to teach him about the rights of disabled, the answer from the DFEH,NO.
Ermalene Gault - August 7, 2013
My daughter,granddaughter&daughter's friend, all disabled, had a grease fire but the fire extinguisher was located out of code and there was not a stick/ax next to it to break the glass to take the extinguisher up to the second floor to put the fire out. my daughter ended up braking the glass w/hand so that the fire wouldn't spread. The manager kept stating that they didn't have renter's insurance. Now they are being evicted. Is there any way to fight this eviction?
JOAN AFTOORA - October 1, 2013
My disabled tenant was served a 60 day notice that her 1 year lease would not be renewed after being late on 2 months rent, having a CODE violation , Non sufficient funds and 3 attempts by Paypal to issue an e-check due to insufficient funds. Do I have to give her a longer time to move out as she is fighting this 2nd eviction due to her handicap and wants money to move!
Ursula - November 29, 2013
I have several disabilities that have been known to my landlord for years. Yet every time I ask for a reasonable accommodations, my management company insists that my doctor verify, fill out and sign new forms. It was my understanding that, once they are aware of the disabilities they should not keep getting my doctor involved. I had an HUD article which clearly states this, but no longer have the computer it was on. I read relevant excerpts from this article to the head of our management company and was told that they would ask for verification by my doctor every time I needed a reasonable accommodation (no matter what HUD's rules are).
Audrey Jordan - January 8, 2014
I live in a two story apartment in Redlands, CA. I am disabled. My doctor has writtem me a request for a first floor apartment. I keep falling, and walking my service dog is very difficult. I want to move, they have explained there are no 1st floor apartments. I need to break my lease, due to medical, and mental health reasons. The property management wants me to pay one month's rent & $500.00 to "Buy-Out" my lease. Is this legal under the ADA? Thank You, any help would be appreciated.
Chalice Willis - January 23, 2014
My Landlord is a Corporate Lawyer. I and my Significant Other have lived in his trailer park for 11 years. It is a 29 foot travel trailer, no tip outs, (not a single or double wide). The last 4 people that moved in to the park into HIS rental trailers, LARGER TRAILERS (w/Tip-outs) paid $75.00 less than we we do (we pay $725. the new tennants paid $650.)We are handicapped and disabled. In 2012, the then Manager(350 lbs.) and his friend (450 lbs. +) got on the roof of my rental and finished off/destroyed the already leaking roof. We complained of the sever leakage We were punished by paying $25.00 more dollars in rent for the 25 year old trailer, that had housed previous tennants.We had NOTHING to do w/ the LEAKING DAMAGE. My NEWEST Problem IS: I have a "sky hatch" over my livingroom area of the trailer we live in, when I handed the DECEMBER 2013 Rent Check to the NEW Manager, I told him my sky hatch was "sun rotted" and needed replacing. He said he'd e-mail the OWNER. Nothing has happened. When I handed the NEW Manager the JANUARY 2014 Rent Check, I reminded him my hatch was sun rotted and getting worse. He replyed he tell the Owner via e-mail. I pay $42.00 a month for Propane (when I have the money) All my heat is escaping out the roof of this trailer via the sun rotted sky hatch. It is the middle of winter, even though it is hot during the day, it is very cold @ night. I set the thermostat @ 65 degrees during the night. I have a gas stove, gas water heater and a gas furnace. Our electric bill is paid every other month, this trailer refrigeratio takes alot of electricity because it was built during a NON-energy crisis time. I never use my air-conditionaire because all the seals around the multiple windows are rotted and leak when it rains, and using the AC would be a big waste of money, yet my electric bill whether I'm here or not is $90.00 during the summer. Did I mention that the tennants that OWN their own trailers only pay $545.00. I wish I could send you a picture of the sun rotted sky hatch so you see what I mean. Please let me know what to do. Sincerely, Ms Chalice Willis P.S. Did I mention that the "New Trailer" he got to replace the "sive" is a 1991 Alpine travel trailer.
Michelle - August 3, 2014
I wanted to see an apartment and told the mgmt that I had a therapy dog. They then sent me over a document which I had to agree to: 1) Monthly inspections to check for damages 2) Carry dog in a crate while outside of apt 3) Be tested for 23 diseases 4) Want his DNA to match to any poop on property - then fine me $200 5) License the dog a second time in their city. This company should be sued in order to stop scaring off tenants with disabilities with this insane list of demands.
Claudia Joan Rosa-Bienenfeld LCSW - August 27, 2014
We have lived at 11122 Riverside Unit 101 North Hollywood/W.Toluca Lake Ca 91602 for 19 years and are homeowners of the Condo.. We have had to fight our HOA for the last 4-5 years for smoke-free access due to my having asthma and allergies. We have hired 3 attorney to date costing us $15,000 and the HOA has denied my doctors and my request for smoke/barbeque outdoor all areas including underground parking. We are non-smokers and do not barbeque anything at all. we are not selling, we are not in foreclosure and we are not moving. We have had to install security cameras and they have been trying to remove them and have filed a complaint with CA DFEH pending. We are in need of help... 15 of the 19 years have been smoke free. The new owners even threatened to kill me. We took him to court for TRO and the Court removed them. We have another attorney. Under the CC&R's and articles of incorporation it does not cost the HOA anything to go smoke/barbeque free. The man fanned his smoke into my eyes and hurt my eyes as well in 2011. Under the CC&R's and the articles of incorporation they must give an accommodation. Smoking is not a right it is an addiction and barbeques are not necessary to sustain life.

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