Posted on December 22, 2011 by Scott M. Badami

Additional Protections for Individuals With Disabilities

 

A couple of questions have arisen concerning disabilities and the Fair Housing Act (FHA).  As such, I thought this would be a good time to review some of the basics about reasonable accommodations and reasonable modifications. 

To help ensure that individuals with disabilities have equal access to and enjoyment of their housing, the FHA provides residents/applicants with the right to request a reasonable accommodation or to make a reasonable modification.

A reasonable accommodation is a change to a rule, policy or procedure.  Under the law, a person with a recognized disability has the right to request that a housing provider make a reasonable accommodation that will allow the person with a disability to have an equal enjoyment of housing. Examples of reasonable accommodations include, but are not limited to:

  • allowing a person with a service animal to live in an apartment with a “no pets” policy or to not charge a pet fee if the community permits animals; 
  • providing a friendly note on the last day of the month to remind a person with a developmental disability that the rent is due the following day; or
  • providing a way to communicate with a resident who has a hearing impairment

The law does not give specific detail as to what types of accommodations are reasonable.  In practice, it becomes a matter of judgment on behalf of both management and the resident/applicant.  Indeed, there are many times when management and the resident absolutely agree on the appropriate accommodation.

In addition to a reasonable accommodation, a resident with a disability has the right to request a physical modification to his or her rental unit if it is necessary to allow the resident with an equal enjoyment of his or her housing. Examples of reasonable modifications include:

  • installation of a ramp;
  • installation of grab bars;
  • widening of doorways; or 
  • lowering a mailbox;

In most cases (at conventional properties), the resident is responsible for the cost of the modifications made to the property and needs to ensure management that the work will be done properly and that any permits needed will be acquired. The tenant may be required to make payments into an escrow account to establish funds to remove the alteration, if indeed the change would interfere with the landlord’s or future tenant’s ability to enjoy the property.  In affordable communities, the rule is usually reversed and management is required to pay for the modification, provided that the cost would not reflect a fundamental alteration in the housing program.

At least as important as the final decision on reasonable accommodation or modification requests is a requirement that management timely consider and respond to the request.  I have seen any number of cases in which management's inaction causes more problems down the road.  It is also my usual recommendation that management provide the resident with an interim letter indicating that we have received your request and the leasing office staff is reviewing it.   

Just a thought.

Tags:
Posted on December 21, 2011 by Scott M. Badami

Here is What Can Happen if Management Posts a Racially Offensive Sign at a Community Pool

We here at the Fair Housing Defense blog write over and over that we know there are always two sides to every case and that both stories deserve to be heard. Today’s post involves a case in which the Ohio Civil Rights Commission found probable cause to believe that unlawful discrimination took place. 

The allegations involve an Ohio landlord who posted a racially insensitive sign at a community swimming pool. Just last week the landlord called on the Ohio Civil Rights Commission to reconsider its September 2011 ruling that she had discriminated on the basis of race in violation of Ohio law when she posted a sign at the pool in one of her properties that read “Public Swimming Pool, White Only.”

According to the Ohio investigators, the landlord directly accused the resident’s biracial daughter of making the water in the pool “cloudy” because of the chemicals that she used in her hair. Shortly thereafter, management allegedly posted the offending sign. Several witnesses confirmed that the sign was indeed posted. The parents filed a discrimination charge and moved out of the community to “avoid subjecting their family to further humiliating treatment.” In defending against the charge, the landlord stated that she didn’t “have any problem with race at all. It’s a historical sign.” She also contended that the swimming pool at the apartment duplex is private property and that “everybody has to ask before getting in my pool.”  The landlord's motion for reconsideration is scheduled to be heard in January 2012.

 

The Fair Housing Act is clear that management cannot, among other things, post a sign that gives the appearance of discrimination against any person on the basis of race, color, national origin, religion, sex, familial status or handicap.  Enough said.  That prohibition extends not only to the rental of apartments, but also to the use of the amenities and common facilities – such as a pool.  Management representatives who fail to strictly comply with these laws expose themselves unnecessarily to potentially severe (and expensive) consequences.

 

Just a Thought.

 

Article by Christian Moffitt.

Tags:
Posted on December 7, 2011 by Scott M. Badami

What Can Be Required of Management to Accommodate our Hearing Impaired Residents?

A client contacted me seeking help with a reasonable accommodation question that I thought merited a blog entry.  The question concerned management's responsibilities to residents who are hearing impaired and require a reasonable accommodation.  Must management provide a sign language interpreter for every communication with the leasing office?  The short answer is that management must ensure that its communications to individuals with disabilities (such as those with hearing loss) are as effective as are communications with others.  As I have written many times before, management must timely evaluate and respond to all reasonable accommodation/modification requests.
 
In order to provide equal access, management can be required to provide auxiliary aids and services that promote effective communication.  Examples of auxiliary aids and services include, but are not limited to: qualified interpreters, captioning, TTYs, and computer software.
 
Many apartment communities already have TTY devices to assist hearing impaired residents and applicants.  One option that may work is some circumstances is to sign your community up with a TTY service and let the residents and applicants know the service exists.  
 
To be sure, I have also seen guidance which notes that a sign language interpreter may be required when the information being communicated in a transaction is complex or is exchanged for a long period of time. Again, while an interpreter is not always required for all communication situations, management does have to provide a solution that is reasonable. Factors to be considered when deciding if the use of an interpreter is appropriate can include the context of the conversation, the number of people involved, and the importance of the communication.  The cost of the interpreter is also a factor -- but unless the cost is truly excessive -- if it is determined that this is the only way to go, management is going to be responsible.
 
Just a thought.

 

Tags:
Posted on December 7, 2011 by Scott M. Badami

DOJ Files Another Complaint: This One Concerning Occupancy Standards

The Department of Justice (DOJ) last month filed a lawsuit against the owners and managers of 23 rental homes in Magee, Mississippi for violating the Fair Housing Act (FHA) by discriminating against families with children.

The lawsuit, filed in the U.S. District Court for the Southern District of Mississippi, charges that the defendants engaged in a pattern or practice of violating the FHA or denied rights protected by the FHA by establishing and implementing occupancy standards limiting the number of children in the rental homes owned and/or leased.  The complaint also charges that, by refusing to rent a three-bedroom home to a woman with four kids because she had too many children under their occupancy guidelines, the defendants violated the FHA. 

 

As do so many other cases, this action started as a result of a complaint filed with the Department of Housing and Urban Development (HUD) by a woman with four daughters who was searching for a three-bedroom rental home.  The woman’s search led her to the defendants, who lease a number of houses in the area.  However, when she contacted the owners, they told the applicant that she had too many children to rent a three-bedroom home.  While the defendants’ occupancy policy allowed five individuals to occupy the house, it permitted no more than three of the occupants to be children.  DOJ alleges that the defendants established similar limitations on the number of children that could live in their two and four bedroom rental homes.  After HUD investigated the complaint, it issued a charge of discrimination and the matter was referred to DOJ.

 

DOJ's complaint seeks a court order prohibiting future discrimination by the defendants, monetary damages for those harmed by the defendants’ actions, and a civil penalty.   As I always add when noting these types of cases, as a defense lawyer, I know there are two sides to the story and I will reserve judgment until I learn more.  However, this case gives all a moment to reflect on occupancy standards -- which are generally permitted, but which must not be unduly restrictive.  Or you might end up needing a lawyer like me.

 

Just a thought.  

Tags: