Reasonable Accommodations in Housing Law
Lael Robertson
Supervising Attorney
Mid-Minnesota Legal Aid
What is Reasonable? – Reasonable
Accommodations in Housing Law
Mid-Minnesota Legal Aid –
Housing Discrimination Law Project
Enforce low income clients’ fair housing
rights
Includes right to reasonable
accommodations
Disability Laws
Americans with Disabilities
Act (ADA)
Minnesota Human Rights Act
(MHRA)
Rehabilitation Act
Fair Housing Act (FHA)
Individual must have a “disability” or have a
relationship or association with an
individual with a “disability.”
Definition of “Disability” (42 U.S.C. §
12102)
◦
A person who has a physical or mental
impairment that “substantially limits” one or
more “major life activities.”
Major life activity include seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing,
learning, reading.
“Disability” Definition from ADA
Definition, Cont’d
“Disability” also includes:
◦
A person who has a history or record of such an
impairment.
◦
A person who is perceived by others as having
such an impairment.
Note
– persons who are
perceived
to have a
disability are not entitled to reasonable
accommodations!
ADA Amendments of 2008
Intended to overturn case law that
restricted the application of the ADA.
Impairment does not need to “prevent or
severely or significantly restrict” a major life
activity to be considered “substantially
limiting.”
Mitigating measures (except glasses) have no
bearing in determining “disability”
An episodic impairment = disability if:
◦
when active, substantially limits a major life
activity.
Fair Housing Act - 1968
Unlawful to take adverse action in
housing based on protected class status.
Reasonable Accommodations - FHA
Housing provider is required to
make change in rules, policies,
practices or services IF:
◦
Accommodation may be necessary
to give disabled person equal use
and enjoyment of dwelling
AND
◦
The change is not unreasonable
Must Have
Disability
Accommodation may be
necessary
for use and
enjoyment of dwelling
Accommodation is
related
to disability or disability-
related need (nexus)
Accommodation is
reasonable
Reasonable Accommodations –
4 Step Analysis
“Unreasonable” Requests
Impose an
undue financial or
administrative burden
; OR
Require a
fundamental alteration
in
the nature of the housing provider’s
operations
RA Examples
At admission:
◦
Waiver of no pets policy (no deposit allowed!)
◦
Rent due on the 3
rd
instead of the 1
st
(for SSA
payments)
◦
Section 8/Public Housing – additional time to fill
out paperwork
During Tenancy:
◦
Parking Space
At Termination:
◦
“Second bite at the apple” – retract termination
Protected or Not Protected?
Resident with a dog
Protected or Not Protected?
Service Dogs
Protected or Not Protected?
Animals for Emotional
Support?
Specific Cases: Service Animals
Allowing service animals is
considered a “reasonable
modification”
“Service Animal” has a specific
definition under the ADA
◦
Only dogs and miniature horses
◦
This is different than FHA!
In 2010, DOJ published specific
regulations regarding the use service
animals.
◦
28 C.F.R. § 35.136; 28 C.F.R. §36.302(c))
Law is very specific in this area
Must Have
Disability
Accommodation may be
necessary
for use and
enjoyment of dwelling
Accommodation is
related
to disability or disability-
related need (nexus)
Accommodation is
reasonable
Reasonable Accommodations –
4 Step Analysis
Protected or Not Protected?
Resident with multiple dogs
Protected or Not Protected?
Other Animals?
Must Have
Disability
Accommodation may be
necessary
for use and
enjoyment of dwelling
Accommodation is
related
to disability or disability-
related need (nexus)
Accommodation is
reasonable
Reasonable Accommodations –
4 Step Analysis
Even a client with a
disability must remain
lease compliant
Even a client with a
reasonable
accommodation (e.g.,
companion animal) must
remain lease compliant
RAs at this stage –
practically speaking – must
have the potential of being
effective
Reasonable Accommodations -
Termination
Tips for success with RAs at
termination:
Specific
Reasonable Accommodation Plan
Earlier the better – particularly in the public
housing/Section 8 process
Ask for it – any time! RAs are available at admittance,
during tenancy, and any time up until eviction.
Push back if there are unreasonable burdens attached
–
◦
Fees, “deposits”
◦
Liability Insurance
Know your resources – social workers, mental health
workers, service providers
Be creative
Defenses to Reasonable
Accommodation Requests
Standing
Undue Burden
Fundamentally Alter
Reasonableness
Direct Threat
Direct Threat Exception
Nothing in this subsection
requires that a dwelling be
made available to an individual
whose tenancy would
constitute a direct threat to
the health or safety of other
individuals or whose tenancy
would result in substantial
physical damage to the
property of others.
◦
BUT – See
Roe v. Sugar River
Mills &Cornwell v. Moore
,
2000 WL 18887528 (2000)
Reasonable Modifications
Structural changes to existing premises
occupied or to be occupied by a person
with a disability if:
◦
such modifications may be necessary to
afford such person full enjoyment of the
premises and
◦
It’s not unreasonable
Modification Examples
Grab bars in the bathroom
Widening doorways
Lowering kitchen cabinets
Switching out carpet for
flooring
Who pays for the modification?
Housing Providers have to allow
reasonable modifications, but tenants have
to pay for them
Exception – if the building receives federal
funds, then the housing provider must pay.
Where can I ask for a modification?
NOT limited to the interior of a dwelling.
Public and common use areas, too
◦
Fitness centers
Exteriors of dwelling units
◦
Entrances
◦
Garage areas
Do modifications have to be
removed?
Interior:
◦
only where “it is reasonable to do so” and
◦
where the housing provider has requested the
restoration.
If the modifications do not affect use or
enjoyment of the premises, the tenant
cannot be required to restore.
If required to restore, tenant must pay.
◦
Housing Provider may require an escrow.
Restoration, Cont’d
Exterior:
◦
Tenant is NOT required to restore.
Accommodation/Modification vs.
Design Standards
FHA has accessibility requirements of
private landlords for newer buildings.
◦
www.fairhousingfirst.org
These are not accommodations – they
are the law!
◦
Failure to comply is a separate legal action.
Strategies and Tips
Strategic Considerations
When to ask for an accommodation
Always in writing – even though it doesn’t
have to be.
Client’s perspective on their disability
Other considerations –
◦
Availability (i.e., apartments)
◦
Other accommodations that could work
How do I get a Reasonable
Accommodation?
First Thing:
ASK
!
◦
An individual should put his or her request in
writing, and ask for a written response.
◦
Request should be as specific as possible.
◦
Housing Providers and Employers CANNOT
guess!
If the opposing party says no:
◦
In the employment context, the “interactive
process” is required. (29 C.F.R. § 1630.2(o)(3))
◦
Interactive process NOT required in housing.
If they say no . . . .
Examples
Letter Examples –
◦
Reasonable accommodation request
◦
Medical provider support
◦
Exception to policies at admission
Enforcement Options
Demand letters
Negotiated settlements
Complaints to HUD, MDHR,
or a local agency
Federal or State Court
SHORT
Statute Of Limitations
Administrative Complaints
◦
One year from date of last discriminatory
incident
Court Complaints
◦
Claims under the FHA – 2 years
◦
Claims under the MHRA – 1 year
Filing with an administrative agency
tolls
the respective jurisdiction’s SOL
Useful Links
http://www.ada.gov
◦
Department of Justice’s ADA Homepage
◦
Includes links to statute, ADA standards,
brochures produced by the DOJ and other
useful information
http://www.humanrights.state.mn.us
◦
Department of Human Rights website
◦
Includes form to start complaint process
Useful Links (cont.)
http://www.hud.gov/fhcomplaints
◦
Department of Housing and Urban
Development website
◦
Includes electronic complaint filing form
http://www.mylegalaid.org
◦
MMLA Homepage
◦
Includes online intake form
www.fairhousingmn.org
◦
Fair Housing materials, including HUD
guidance.
Contact Info
Minnesota Disability Law
Center & Mid-Minnesota
Legal Aid Intake Line
◦
612-334-5970
Lael Robertson, Supervising
Attorney, HDLP
612-746-3834
lerobertson@mylegalaid.org
Questions or Comments?
Exploring the concept of reasonable accommodations in housing law, particularly focusing on the rights of individuals with disabilities under various acts such as the ADA, MHRA, FHA, and more. Learn about the definition of disability, the importance of reasonable accommodations, and the implications of the Fair Housing Act.
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Presentation Transcript
What is Reasonable? Reasonable Accommodations in Housing Law Lael Robertson Supervising Attorney Mid-Minnesota Legal Aid
Mid-Minnesota Legal Aid Housing Discrimination Law Project Enforce low income clients fair housing rights Includes right to reasonable accommodations
Disability Laws Americans with Disabilities Act (ADA) Minnesota Human Rights Act (MHRA) Rehabilitation Act Fair Housing Act (FHA)
Disability Definition from ADA Individual must have a disability or have a relationship or association with an individual with a disability. Definition of Disability (42 U.S.C. 12102) A person who has a physical or mental impairment that substantially limits one or more major life activities. Major life activity include seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading.
Definition, Contd Disability also includes: A person who has a history or record of such an impairment. A person who is perceived by others as having such an impairment. Note persons who are perceived to have a disability are not entitled to reasonable accommodations!
ADA Amendments of 2008 Intended to overturn case law that restricted the application of the ADA. Impairment does not need to prevent or severely or significantly restrict a major life activity to be considered substantially limiting. Mitigating measures (except glasses) have no bearing in determining disability An episodic impairment = disability if: when active, substantially limits a major life activity.
Fair Housing Act - 1968 Unlawful to take adverse action in housing based on protected class status.
Reasonable Accommodations - FHA Housing provider is required to make change in rules, policies, practices or services IF: Accommodation may be necessary to give disabled person equal use and enjoyment of dwelling AND The change is not unreasonable
Reasonable Accommodations 4 Step Analysis Must Have Disability Accommodation may be necessary for use and enjoyment of dwelling Accommodation is related to disability or disability- related need (nexus) Accommodation is reasonable
Unreasonable Requests Impose an undue financial or administrative burden; OR Require a fundamental alteration in the nature of the housing provider s operations
RA Examples At admission: Waiver of no pets policy (no deposit allowed!) Rent due on the 3rd instead of the 1st (for SSA payments) Section 8/Public Housing additional time to fill out paperwork During Tenancy: Parking Space At Termination: Second bite at the apple retract termination
Protected or Not Protected? Resident with a dog
Protected or Not Protected? Service Dogs
Protected or Not Protected? Animals for Emotional Support?
Specific Cases: Service Animals Allowing service animals is considered a reasonable modification Service Animal has a specific definition under the ADA Only dogs and miniature horses This is different than FHA! In 2010, DOJ published specific regulations regarding the use service animals. 28 C.F.R. 35.136; 28 C.F.R. 36.302(c)) Law is very specific in this area
Reasonable Accommodations 4 Step Analysis Must Have Disability Accommodation may be necessary for use and enjoyment of dwelling Accommodation is related to disability or disability- related need (nexus) Accommodation is reasonable
Protected or Not Protected? Resident with multiple dogs
Protected or Not Protected? Other Animals?
Reasonable Accommodations 4 Step Analysis Must Have Disability Accommodation may be necessary for use and enjoyment of dwelling Accommodation is related to disability or disability- related need (nexus) Accommodation is reasonable
Reasonable Accommodations - Termination Even a client with a disability must remain lease compliant Even a client with a reasonable accommodation (e.g., companion animal) must remain lease compliant RAs at this stage practically speaking must have the potential of being effective
Tips for success with RAs at termination: Specific Reasonable Accommodation Plan Earlier the better particularly in the public housing/Section 8 process Ask for it any time! RAs are available at admittance, during tenancy, and any time up until eviction. Push back if there are unreasonable burdens attached Fees, deposits Liability Insurance Know your resources social workers, mental health workers, service providers Be creative
Defenses to Reasonable Accommodation Requests Standing Undue Burden Fundamentally Alter Reasonableness Direct Threat
Direct Threat Exception Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. BUT See Roe v. Sugar River Mills &Cornwell v. Moore, 2000 WL 18887528 (2000)
Reasonable Modifications Structural changes to existing premises occupied or to be occupied by a person with a disability if: such modifications may be necessary to afford such person full enjoyment of the premises and It s not unreasonable
Modification Examples Grab bars in the bathroom Widening doorways Lowering kitchen cabinets Switching out carpet for flooring
Who pays for the modification? Housing Providers have to allow reasonable modifications, but tenants have to pay for them Exception if the building receives federal funds, then the housing provider must pay.
Where can I ask for a modification? NOT limited to the interior of a dwelling. Public and common use areas, too Fitness centers Exteriors of dwelling units Entrances Garage areas
Do modifications have to be removed? Interior: only where it is reasonable to do so and where the housing provider has requested the restoration. If the modifications do not affect use or enjoyment of the premises, the tenant cannot be required to restore. If required to restore, tenant must pay. Housing Provider may require an escrow.
Restoration, Contd Exterior: Tenant is NOT required to restore.
Accommodation/Modification vs. Design Standards FHA has accessibility requirements of private landlords for newer buildings. www.fairhousingfirst.org These are not accommodations they are the law! Failure to comply is a separate legal action.
Strategic Considerations When to ask for an accommodation Always in writing even though it doesn t have to be. Client s perspective on their disability Other considerations Availability (i.e., apartments) Other accommodations that could work
How do I get a Reasonable Accommodation? First Thing: ASK! An individual should put his or her request in writing, and ask for a written response. Request should be as specific as possible. Housing Providers and Employers CANNOT guess! If the opposing party says no: In the employment context, the interactive process is required. (29 C.F.R. 1630.2(o)(3)) Interactive process NOT required in housing. If they say no . . . .
Examples Letter Examples Reasonable accommodation request Medical provider support Exception to policies at admission
Enforcement Options Demand letters Negotiated settlements Complaints to HUD, MDHR, or a local agency Federal or State Court
SHORT Statute Of Limitations Administrative Complaints One year from date of last discriminatory incident Court Complaints Claims under the FHA 2 years Claims under the MHRA 1 year Filing with an administrative agency tolls the respective jurisdiction s SOL
Useful Links http://www.ada.gov Department of Justice s ADA Homepage Includes links to statute, ADA standards, brochures produced by the DOJ and other useful information http://www.humanrights.state.mn.us Department of Human Rights website Includes form to start complaint process
Useful Links (cont.) http://www.hud.gov/fhcomplaints Department of Housing and Urban Development website Includes electronic complaint filing form http://www.mylegalaid.org MMLA Homepage Includes online intake form www.fairhousingmn.org Fair Housing materials, including HUD guidance.
Contact Info Minnesota Disability Law Center & Mid-Minnesota Legal Aid Intake Line 612-334-5970 Lael Robertson, Supervising Attorney, HDLP 612-746-3834 lerobertson@mylegalaid.org
