Does an "Economic Accommodation" Exist Under the FHA?
As we have discussed in previous posts, a reasonable accommodation (a change in a rule/policy) or a resonable modification (a physical alteration) can be used to ensure a disabled applicant or resident can obtain the full use and enjoyment of his or her housing. But what about an economic accommodation? What is someone needs help paying his or her rent?
A Ninth Circuit case, Giebler v. M&B Associates et al., 343 F.3d 1143 (9th Cir. 2003), set the framework for courts across the country to provide an economic consideration pursuant to the Fair Housing Act (FHA) in instances where the resident's disability prevents him or her from working.
In Giebler, the resident was unable to meet the minimum financial qualifications for the apartment because he suffered from AIDS and was unable to work. Yet, the tenant’s mother, who did meet the financial standards, offered to rent the apartment for him. The management company rejected the offer because the management company had a policy against co-signers. The tenant argued that the management company violated the FHA by refusing to waive the no co-signer policy in light of his disability.
The Giebler court recognized that an accommodation that remedied the economic status of a disabled person was an "accommodation" as contemplated by the FHA. The court held that the FHA required the management company to reasonably accommodate the tenant’s disability by assessing individually the risk of non-payment created by his specific proposed financial arrangement, rather than inflexibly applying a rental policy that prohibited co-signers. Thus, the resident’s request qualified as an accommodation that was "reasonable" within the meaning of FHA and was necessary to afford the tenant equal opportunity to use and enjoy the housing unit.
Although a number of cases have since followed Giebler, there are other decisions which provide that an economic accommodation is not always required. For example, one court in the Third Circuit required a causal nexus between the tenant’s disability and the need for an accommodation. See Bell v. Tower Management Service, L.P. et al., 2008 U.S. Dist. LEXIS 53514 (D.N.J. July 15, 2008). This case stands for the proposition that a resident who would never have been able to meet the minimum income requirement even without his or her disability cannot use the disability to otherwise meet the minimum income requirement.
In addition to proving a causal nexus, a plaintiff must prove that a reasonable accommodation is feasible. For example, in Sutton v. Freedom Square Limited, 2008 U.S. Dist. LEXIS 81600 (E.D. Mich. Oct. 15 2008) aff’d 2009 U.S App. LEXIS 17201), the court concluded that a resident seeking a reasonable accommodation must provide a willing co-signor who meets the requirements of the apartment community.
In sum, examine the specific facts carefully when reviewing economic accommodation requests. Different jurisdictions may have slightly different criteria, although all operating under the same general framework.
Just a Thought.
Article by Karin Corbett.
