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Consumer's Guide Homeowners Insurance Persons with Disabilities

A Fair Housing Guide for Persons With Disabilities

Laws Relating to Housing and Persons with Disabilities  
Title VIII of the Civil Rights Act of 1968, the Fair Housing Act prohibits discrimination in any housing related transaction on the basis of race, color, religion, sex, and national origin. In 1988, the Act was amended to include the additional protected classes of familial status (households with children under the age of 18) and persons with disabilities. Section 504 of the Rehabilitation Act states that no otherwise qualified individual with a disability may be discriminated against in any program or activity receiving federal financial assistance. The purpose of Section 504 is to ensure that people with disabilities will have the same opportunities in federally funded programs as do people without disabilities. Program accessibility may be achieved by modifying existing housing or facilities, or moving a program to an accessible location, or by making other accommodations, including the construction of new buildings.

The Americans with Disabilities Act (ADA) is a broad civil rights law guaranteeing equal opportunity for individuals with disabilities in employment, public accommodations, transportation, state and local government services, and telecommunications. Title III of the Act covers all private establishments and facilities considered "public accommodations" such as restaurants, hotels, retail establishments, doctors' offices, and theaters. This can include public facilities in a private housing complex.

The Architectural Barriers Act states that all buildings, other than privately owned residential facilities, constructed by, on behalf of, leased by the federal government, or buildings financed in whole or in part with federal funds must be physically accessible for persons with disabilities. This includes public housing and means that any new construction or alterations of public housing must comply with the law's accessibility standards.

Disability Defined  
A disability is defined in the Fair Housing Act as a physical or mental impairment that substantially limits one or more of a person's "major life activities." Major life activities can include caring for one's self, walking, seeing, hearing, speaking, breathing, learning, and working. If you use a walker, a wheelchair, a service animal, or a personal-care attendant, you are protected against housing discrimination. Disabilities also may include visual impairments, emotional problems, mental illness, retardation, recovering alcoholism, recovering drug addiction, difficulties associated with aging, or HIV/AIDS. The Fair Housing Act does not protect those who use drugs illegally. But if you are in or have successfully completed a recovery program you are protected.

Provisions Related to Disability in the Fair Housing Act  
It is unlawful to discriminate in the sale, rental, lease, or financing of housing. This includes: misrepresenting the availability of housing, steering or segregating housing, or advertising housing in a discriminatory manner. It is also unlawful to discriminate against any person in terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such a dwelling. It is unlawful to coerce, intimidate, threaten, or interfere with a person's right to fair housing. For example, interference with the sale of a home to individuals with disabilities by enforcing a restrictive covenant might violate the Act.

In addition, housing providers must make reasonable accommodations in rules, policies, practices, or services when such accommodations provide equal opportunity for the disabled person to use and enjoy the dwelling. The housing provider must also allow, at the expense of the person with the disability, reasonable modifications of existing premises occupied or to be occupied by such person if those modifications are necessary to afford the individual full enjoyment of the premises. Reasonable Accommodations  
A reasonable accommodation is a change in a housing provider's rules, policies, practices, or services that enables a person with a disability to live in a dwelling that they would be otherwise unable to live in.

Examples of Requests for Reasonable Accommodations  

• A tenant has no recent rental history because he has been in a mental hospital for two years. The landlord makes an exception to the requirement of asking for rent history, and instead accepts a reference from the applicant's employer or social worker.
• A man with a heart problem can only walk short distances. Although the apartment building has parking on a first come first served basis, the man is allowed to have a reserved space next to his unit.
• A woman with severe allergies is notified in advance of painting and pest extermination so she can make arrangements to stay elsewhere.
• A landlord or manager assists an applicant with mental retardation in filling out the standard application form.
• If the applicant needs oral reminders to pay the rent, the landlord agrees to call or visit to remind the person before each month's rent is due.
• A woman with a visual impairment has a guide dog. She is applying to a no-pets apartment building. The building manager must allow her to keep the dog as a reasonable accommodation if she can provide documentation that she needs the dog because of her disability.
• A man with AIDS has become very frail as a result of his disability. He needs a live-in attendant to assist with his personal care. When he applies to the public housing authority, he requests an accommodation to have a two-bedroom unit to allow a live-in attendant to live with him.

Reasonable Modifications  
A reasonable modification is a change in the physical structure of the premises. This means that a disabled tenant may modify the dwelling (at his or her own expense) according to individual need, therefore enabling the disabled tenant to live in a dwelling that they would be otherwise unable to live in. This includes the interior and exterior of a building or a unit, including public and common-use areas. Thus, even if the housing provider has no obligation to provide accessible housing, the provider must still permit the tenant to make reasonable modifications to main entrances and lobbies of apartment buildings and other common-use and public areas necessary for full enjoyment of living there. For example, if the laundry room is not accessible, someone with mobility impairment might not have "full enjoyment of the premises."

Private housing providers can require that the tenant use a certified contractor to do the work, and can require that the tenant restore the premises to its original condition upon vacating the unit if the modification is not in a common use area and will interfere with the next tenant's use and enjoyment of the premises. If the modification will not interfere, it is unreasonable to request the tenant to restore the property. For example, if a tenant has a ramp to the laundry room built in a multi-unit apartment complex, this does not need to be removed because it is located in a common use area and may be beneficial to future tenants. However, if cabinets in the kitchen are removed or lowered in order for more mobility and access to a wheelchair user, these may be required to be returned to the original condition.

Where it is necessary to ensure, with reasonable certainty, that the tenant will have sufficient funds available to pay for restorations, the housing provider may negotiate payment by the tenant into an interest-bearing escrow account. Such payments may be made over a reasonable period; the amount must be reasonable and cannot exceed the cost of the restorations. The interest accruing in the account belongs to the tenant. A housing provider may not routinely require an escrow account, however, such a decision must be on a case-by-case basis. For example, if the proposed modifications are minor and restorations will be unnecessary or the tenant can provide assurances that they will be able to carry out those that are necessary, then it would be unreasonable for the housing provider to require an escrow account. On the other hand, if the tenant wishes to make extensive modifications that must be restored and cannot give satisfactory assurance that restorations will be carried out, the housing provider may require an escrow account. Such an agreement should always be in writing.

Note: It is important to understand that regardless of how much money has been put into modifying an apartment, a tenant is still subject to a rental lease that could be terminated at the end of the lease. If the modifications are extensive, it might be a good idea for the applicant to negotiate a longer-term lease to protect that investment.

Public Housing Authorities (PHA)  
PHAs are subject to Section 504 of the Rehabilitation Act, which requires that money be allocated and paid to assist tenants in achieving reasonable accommodations and modifications. Thus, in housing of this type the housing provider pays for the modifications. Private landlords, on the other hand have no such obligation under the Fair Housing Act.

What is Reasonable?  
According to fair housing laws, "reasonable" means that the action requested by the individual with the disability:

• does not cause an undue financial or administrative burden to the housing provider;
• does not cause a basic change in the nature of the housing program available;
• will not cause harm or damage to others; and
• is technologically possible.

Examples:  

• It would be unreasonable for a person with a disability to ask that the housing provider assist them with their meals. However, if the housing provider were in the business of providing meal support (such as in an assisted living facility) it would be reasonable to request a special meal diet for someone with diabetes.

• If a person becomes disabled and can no longer access their 3rd floor apartment in a non-elevator building, it would be unreasonable (and probably architecturally impossible) to request the landlord allow the tenant to build an elevator. It would be reasonable to request that the landlord allow the tenant to move to a 1st floor unit or an elevator building or let the tenant out of his or her lease without requiring the payment of a fee for breaking the lease.

The "Reasonable Accommodation" Mandate  
The "reasonable accommodation" mandate is flexible in that it allows for individualized treatment between landlords and tenants. Sometimes a reasonable accommodation results in a landlord changing a policy or practice; sometimes it allows a tenant to alter behavior or practices and still be considered lease compliant. In either case a reasonable accommodation may often allow a tenant with disabilities to remain in private, public or subsidized housing when rules, policies, or practices would otherwise prohibit tenancy.

For example, courts have held that a landlord cannot proceed with an eviction of a tenant with a disability, even when a tenant has violated his or her lease because of violent behavior, if the tenant shows that he or she may be able to remain lease compliant when given the opportunity to obtain services or take action to correct the lease violation.

The use of reasonable accommodations not only preserves housing for a person whose disability is interfering with his or her successful maintenance of stable housing, but also allows a tenant with disabilities to identify and resolve issues that would inhibit more general integration into community life.

Requesting a Reasonable Accommodation  
It is the responsibility of the consumer to request that the housing provider make an accommodation or modification, since a provider cannot be expected to predict or anticipate an individual's needs. Requests for accommodation or modification should be made in writing for proper documentation.

Suggested Procedure For Writing a Request For a Reasonable Accommodation or Modification  

1. Indicate that you qualify as a person with a disability as defined by civil rights laws. It is not necessary to reveal the nature or severity of your disability, unless you feel comfortable in doing so. "I qualify as an individual with a disability as defined by the Federal Fair Housing Act Amendments of 1988."

2. State where you live and who is responsible for the building. "I live at 805 W. Green Street, Apartment #2A. This building is managed by John Doe and owned by you, Jane Smith."

3. Describe the policy, rule, or architectural barrier that is problematic to you. "Rent must be paid on time or the tenant can be evicted."

4. Describe how this policy or barrier interferes with your needs, rights, or enjoyment of your housing."I am unable to pay my rent on time without a reminder."

5. In clear and concise language, describe the change you are seeking in the policy, rule or barrier. "I am requesting oral reminders to pay the rent or the landlord agrees to call or visit to remind me before each month's rent is due."

6. Cite the applicable law that protects your rights.

   For accommodations use:  
   "Under the Fair Housing Act Amendments Sec. 804 (42 U.S.C. 3604)(f)(3)(B), it is unlawful discrimination for a management company to deny a person with a disability a 'reasonable accommodation' of building rules or policies if such accommodation may be necessary to afford such person full enjoyment of the premises."

   For modifications use:  
   "Under the Fair Housing Act Amendments, Sec. 804 (42 U.S.C. 3604)(f)(3)(A), it is unlawful discrimination for a management company to deny a person with a disability a 'reasonable modification' of existing premises occupied or to be occupied by such person if such modification may be necessary to afford such person full enjoyment of the premises."

7. Ask for a written response within a certain amount of time. Sign and date the request. Remember to keep a copy of your request for your files. "Please respond in writing to my request within 10 days."

8. If the request is denied, contact an advocate to determine if your rights have been violated.

View a sample Reasonable Accommodation Letter
View a sample Reasonable Modification Letter

Viewing the documents above requires Adobe Acrobat Reader.

What should you do if a housing provider refuses an accommodation or modification?  
To file a formal complaint of housing discrimination under the Fair Housing Act, a person must show that:

• They have a disability as defined in the Act. A letter from a psychiatrist, doctor, psychotherapist, or other knowledgeable professional should be sufficient to verify a person's disability status and the relationship of the accommodation to the disability.
• The housing provider knew of, or should reasonably be expected to know about the disability. Accommodation of the disability "may be necessary" to afford the person an equal opportunity to use and enjoy a dwelling. The person requesting an accommodation must show that the specific accommodation he or she is requesting is necessary to overcome a housing barrier imposed solely because of his or her disability.
• An accommodation or modification request can only be denied if it is "not reasonable." If a housing provider has doubts about what is reasonable, he/she can contact an attorney, HUD's office of Fair Housing and Equal Opportunity, or the Fair Housing Council of Suburban Philadelphia. A housing provider cannot defend a refusal to grant an accommodation request on the basis that he/she does not believe the accommodation would best meet the needs of the tenant or applicant who requested the accommodation.
• The housing provider refused to make such an accommodation.

Questions a Landlord May Ask a Prospective Tenant  
Landlords may inquire into an applicant's ability to meet tenancy requirements. This means a landlord may ask whether you have sufficient income to be able to pay the rent, whether you are willing to comply with the building's rules, and other questions relating directly to tenancy — provided he asks all other applicants the same questions.

A landlord may also ask the following questions, as long as he asks them of all applicants.

• If a landlord is providing housing designed for and occupied by persons with disabilities or with a particular type of disability, he/she may ask whether you qualify for this type of housing.
• A landlord who provides this type of housing may ask if an applicant qualifies for a priority available to persons with disabilities or with a particular type of disability.
• A landlord may also ask you whether you are currently using illegal drugs, whether you have ever been convicted of the illegal manufacture or distribution of a controlled substance, and whether your tenancy poses a "direct threat to the health or safety of others."
• If a landlord asks one prospective tenant any of these questions, all applicants must be asked the same questions. It would be illegal to ask these questions only of applicants that are disabled.
• A landlord may not ask a prospective tenant, resident, sub-tenant, guest, invitee, or any associate of a tenant whether they have any type of disability. A landlord also cannot inquire about the nature or severity of a disability. Nor may a landlord ask a tenant or applicant any questions that would require you to waive your rights to confidentiality regarding your medical condition or history.
• A landlord is not entitled to see a prospective tenant's medical records.

Grounds For Rejection of an Applicant or Eviction of a Tenant  
If the tenant or prospective applicant refuses or is unable to comply with the tenancy rules that apply to all tenants, or if the person's "tenancy would constitute a direct threat to the health or safety of the other individuals or whose tenancy would result in substantial physical damage to the property of others" then that applicant can be turned down for residency or evicted. However, if a reasonable accommodation would enable the tenant to comply with standard tenancy rules, the law requires that landlord to provide such an accommodation. Important to deciding if an accommodation is reasonable is whether the benefit of continued housing to the tenant outweighs the burdens and costs the landlord must assume to make the accommodation.

Zoning  
While state and local governments have authority to regulate land use, that authority has sometimes been invoked to restrict the ability of individuals with disabilities to live in communities. If a land use law or zoning decision is the result of an intention to discriminate against people with disabilities, it violates the Fair Housing Act. Zoning decisions or land use laws may not be based upon community opposition, fears or stereotypes of people with disabilities, or concerns about declining property values. While the Fair Housing Act prohibits intentional discrimination, it also prohibits other forms of discrimination in zoning including discriminatory classification of persons with disabilities, zoning laws which have a discriminatory effect on persons with disabilities, and failure of zoning officials to make reasonable accommodations that meet the needs of persons with disabilities.

Accessibility & New Construction  
Under the Fair Housing Act, single story units in new multifamily housing built for first occupancy after March 13, 1991 must be built in an accessible manner if the buildings contain four or more dwelling units and if the units are either located on the first floor or are served by an elevator. To comply with the accessibility requirements of the Fair Housing Act, the housing must include the following features:

• an accessible building entrance on an accessible route
• accessible public and common-use areas
• doors that allow passage by a person in a wheelchair
• accessible route into and through the dwelling unit
• light switches, thermostats and other environmental controls in accessible locations
• reinforcements in bathroom walls for later installation of grab bars
• kitchens and bathrooms that allow a wheelchair to maneuver about the space.

To File a Complaint of Housing Discrimination Contact:

Fair Housing Council of Suburban Philadelphia
225 South Chester Road, Suite 1
Swarthmore, PA 19081
(610) 604-4411
information@fhcsp.com

U.S. Department of Housing & Urban Development
Office of Fair Housing and Equal Opportunity
The Wanamaker Building
100 Penn Square East
Philadelphia, PA 19107
(215) 656-0660

Some of the information contained in this booklet was modified from "What Does Fair Housing Mean to People with Disabilities?" published by the Bazelon Center for Mental Health Law and "When the Law Says It's Okay to Bend the Rules" published by Diana T. Myers and Associates

This guide has been produced by the Fair Housing Council of Suburban Philadelphia through a Fair Housing Initiatives Program Grant from the U.S. Department of Housing and Urban Development and a Community Development Block Grant from the Delaware County Office of Housing & Community Development.
© 2004 Fair Housing Council of Suburban Philadelphia, All Rights Reserved