Reasonable Accommodation

The Department of Housing and Urban Development (HUD) released a report on Tuesday, September 5th that really struck me.  The report revealed the findings of a pilot study on rental housing discrimination on the basis of mental disabilities.  As most readers of this blog know, I devote a substantial amount of space discussing disability discrimination under the Fair Housing Act.  And for good reason, apparently, given that HUD’s recent report identified that persons with disabilities—specifically mental disabilities—received fewer responses to their rental inquiries, were informed of fewer available units and were less likely to be invited to contact the housing provider when compared to people without mental disabilities.

In addition, the report also focused on another topic I have devoted a significant amount of time on—reasonable accommodations—finding that a significant number of people with mental disabilities were given a negative response to their request.  Interestingly enough, HUD’s study also found that a higher percentage of housing providers were willing to grant accommodation requests to people with intellectual or developmental disabilities than to people with mental illness.

So what’s the bottom line?  The findings of HUD’s study really reveal that there is still an underlying stigma against residents and prospects with mental disabilities.  As a property manager or landlord, you need to have policies in place to ensure that all prospects and residents are treated equally.  With regard to handling reasonable accommodation requests, you must have strong policies in place, and I would recommend that you set up a centralized processing system for reviewing and responding to accommodation and modification requests.  Not only because it is the right thing to do, but also because HUD has given strong indicators that it will be focusing its testing efforts on disability discrimination in the immediate future.

Under the Fair Housing Act, property owners and management companies are required to ensure that all tenants have an equal opportunity to use and enjoy a property.  Generally, this means that management must grant reasonable accommodation and modification requests where necessary to afford a tenant the full use of the property.  But what is the difference between a reasonable accommodation and a reasonable modification under the Fair Housing Act?  Well, in a word—cost!

First things first though.  A reasonable accommodation is a change, exception, or adjustment to a property rule, policy, practice, or service.  A reasonable modification is a structural change made to the premises.  So, for example, a request by a tenant in a wheelchair for a guide dog in an apartment community with a “no pets” policy is a reasonable accommodation request; a request by a tenant in a wheelchair to install grab bars in the bathroom is a reasonable modification request.

In my experience, however, I have found that property owners and management companies are more interested in the cost aspect of reasonable accommodations and modifications.  Generally speaking, under the federal Fair Housing Act, management is responsible for the costs associated with a reasonable accommodation, while the tenant is responsible for the costs associated with a reasonable modification.  There are a few exceptions to the general rule regarding cost (which I will explore in a subsequent blog post), such as where the requested modification is one that should have been included in the unit or common use area when the property was constructed pursuant to the Fair Housing Act’s Design and Construction Guidelines, or where the property receives federal funding.

In closing, here are a few additional caveats regarding cost.  First, you may request that a tenant restore the modified portions of the interior of the unit to the previous condition only where “it is reasonable to do so.”  Contrast this from modifications to common areas of the property or the exterior of the unit, which the tenant is not required to restore to the original condition at the end of his or her tenancy.  And, while the tenant is generally required to pay for reasonable modifications made to common areas of the property, if the modification is made to a common area that is normally maintained by management, then management is responsible for the upkeep and maintenance of the modification as well.

Reasonable accommodation and modification requests can be tricky, and I would encourage property owners and management companies to consult with a local, experienced attorney regarding these requests—particularly given that other jurisdictions (such as Massachusetts) have enacted statutes placing the burden of the cost of a reasonable modification on the landlord.

One common question from landlords and property managers is whether they are permitted to request supporting information from tenants who have made an accommodation request under the federal Fair Housing Act.  The stakes for owners and property managers here are high—a single misstep can lead to a costly discrimination claim.

Thankfully, HUD—the Department of Housing and Urban Development —has given some pretty clear guidance on this issue.  Generally speaking, the inquiries that you may make—and the verifying information that you may require—depends on the degree to which the requester’s disability or the disability-related need for the accommodation is either obvious or known.  The following is an overview of the guidance that HUD has provided regarding responding to a reasonable accommodation request:

  • If the requester’s disability is obvious, or known to you, and the need for the accommodation is also readily apparent or known, then you may not request any additional information about the disability or the disability-related need for the accommodation.  Example:  An applicant with an obvious vision impairment requests an accommodation to a property’s “no pets” policy to allow the applicant’s seeing eye dog in his unit. Here, you may not require the applicant to provide any additional information about the disability or the disability-related need for the accommodation.   
  • If the requester’s disability is known or readily apparent, but the need for the accommodation is not readily apparent or known, then you may request only information that is necessary to evaluate the disability-related need for the accommodation.  Example: An applicant who uses a wheelchair makes a reasonable accommodation request to allow an assistance dog in her unit even though the property has a “no pets” policy.  Here, even though the applicant’s disability is readily apparent, the need for the accommodation is not obvious—thus, you may ask the applicant to provide information about the disability-related need for the dog. 
  • If the requester’s disability is not obvious, then you may request reliable disability-related information that: 1) is necessary to verify that the requester has a disability within the meaning of the Fair Housing Act; 2) describes the needed accommodation; and 3) shows the relationship between the requester’s disability and the need for the requested accommodation.  This information can usually be obtained directly from the requester, or from a medical professional, peer support group, non-medical service agency, or other reliable third party.  Under most circumstances, an individual’s medical records or detailed information about the nature of a person’s disabilities will not be necessary.