By Kerstin Arusha
Edited by Peg Healy
What happens when a blind tenant with a seeing-eye dog tries to move into an apartment complex with a strict no-pets policy? What if a tenant who walks with difficulty wants a reserved parking space next to her apartment, but she is at the bottom of the waiting list for spaces? What are the options for a tenant who is being evicted for minor damage to his apartment caused when he had an emotional breakdown?
In many such situations tenants with disabilities can request a reasonable accommodation, defined by the fair housing laws as a change in the landlord's rules, policies, or practices that is necessary to afford a person with a disability an opportunity to use and enjoy the dwelling. 42 USC §3604(f)(3)(B); Cal Govt C §§12927(c)(1), 12955. What does this mean in practice?
Fair Housing Laws
The primary fair housing laws are the federal Fair Housing Amendments Act of 1988 (FHAA) (42 USC §§3601 et seq.) and California's Fair Employment and Housing Act (FEHA) (Govt C §§12900 et seq.). An earlier California statute also addresses reasonable accommodations (CC §54.1(b)). Federally funded housing providers are covered by section 504 of the Rehabilitation Act (29 USC §794) as well. Looking at these laws in combination, almost all landlords or lessors are required to make reasonable accommodations. There is an exception for California homeowners who rent out just one room in the house they occupy. Govt C §12927(c)(2)(A); CC §54.1(b)(2). Condominium homeowners' associations and mobile home parks are also obligated to make reasonable accommodations, even when the accommodation may violate an association's covenants or affect commonly owned areas of the property. See Gittleman v Woodhaven Condo. Ass'n Inc. (D NJ 1997) 972 F Supp 894.
Because of the fair housing statutes' broad definition of dwelling, almost anywhere that a person spends the night is covered. 42 USC §3602(b); Govt C §12927(d); CC §54.1(b)(2). This includes nursing homes (Hovsons Inc. v Township of Brick (3d Cir 1996) 89 F3d 1096), homeless shelters (Turning Point Inc. v City of Caldwell (9th Cir 1996) 74 F3d 941), and timeshares (Louisiana ACORN Fair Housing v Quarter House (ED La 1997) 952 F Supp 352).
Analyzing the Request
Because landlords and tenant advocates often feel at a loss about how to analyze these requests for accommodations, I have developed an acronym to help remember the important factors: DANCE. The five factors in the acronym (disability, accommodation request, necessity, cost, effect) encapsulate the elements of an accommodation case as outlined by the Ninth Circuit in U.S. v California Mobile Home Park Mgmt. Co. (1994) 29 F3d 1413, appeal after remand (1997) 107 F3d 1374. The back-and-forth interaction between tenant and landlord regarding these requests often resembles a dance.
Disability. To qualify for an accommodation, a tenant must have a disability-a mental or physical impairment that limits one or more major life activities, such as walking, seeing, hearing, working, learning, or caring for one's self. Under the federal statute, but not California law, the limitation must be substantial. 42 USC §3602(h); Govt C §12955.3. Impairments include recognized mental health conditions such as mental retardation, emotional or mental illness, specific learning disabilities, and depression. 24 CFR 100.201(a)(2). The statutes define alcoholism and past (but not current) drug addiction as disabilities. See 42 USC §3602(b); Govt C §12955.3; 24 CFR 100.201(a)(2). How long ago is "past" drug use? A year is sufficiently past, but six weeks ago is considered current. U.S. v Southern Mgmt. Corp. (4th Cir 1992) 955 F2d 914; Fowler v Borough of Westville (D NJ 2000) 97 F Supp 2d 602 (summarizing cases).
If a landlord doubts that a tenant requesting the accommodation has a true disability, the landlord should ask for verification. Hubbard v Samson Mgmt. Corp. (SDNY 1998) 994 F Supp 187, 192; Jankowski Lee & Assoc. v Cisneros (7th Cir 1996) 91 F3d 891, 895. This is an exception to the general rule that housing providers may not ask whether an applicant or tenant has a disability. 24 CFR §100.202(c). Housing providers should accept a doctor's note that states the tenant's condition is a disability unless there are clear reasons to question the note.
Accommodation request. The tenant must communicate to the housing provider his or her need for an accommodation of some medical condition. The tenant need not use the magic words reasonable accommodation, nor even make the request in writing (though I would always recommend that tenants do so). In one case a tenant told the manager that he did not have to get rid of his cat because he was disabled, which was found to be sufficient notice for the landlord to begin the accommodation evaluation. HUD v Dutra (HUD ALJ 1996) 1996 WL 657690.
The request must be for a change to the landlord's existing rules or practices. If the tenant is requesting a physical change to his or her apartment, that is a modification, not an accommodation. Although the analysis is similar, in private housing the tenant must pay the cost of the modification and restore the premises at the end of the tenancy if the modification would make the apartment less marketable. 42 USC §3604(f)(3)(A); Govt C §12927(c)(1). There remains debate about when a physical change to the common areas of the complex is an accommodation and when it is a modification. Marking parking spaces as reserved for the disabled is an accommodation. See Hubbard, 994 F Supp 187; Shapiro v Cadman Towers Inc. (EDNY 1994) 844 F Supp 116.
Necessity. There must be a nexus between the symptoms of the disability and the accommodation requested. Plaintiffs have lost their cases by not making this connection clear. See Gavin v Spring Ridge Conservancy, Inc. (D Md 1995) 934 F Supp 685 (plaintiff did not explain why his disability required more storage space). The accommodation must be a necessity; The mere convenience of the disabled person is not sufficient.
Cost. If an accommodation imposes an undue financial or administrative burden on the landlord, the accommodation is not reasonable. Green v Housing Authority (D Or 1998) 994 F Supp 1253; Shapiro, 844 F Supp 116. The key word here is undue, which is different for a corporate-owned complex than for a mom-and-pop-owned fourplex. One court found that requiring a landlord to build a wheelchair ramp, costing a minimum of $25,000, was not reasonable. Rodriguez v 551 West 157th Street Owners Corp. (SDNY 1998) 992 F Supp 385; see also Judy B. v Borough of Tioga (MD Pa 1995) 889 F Supp 792, 799.
Landlords fear that accommodations could result in costs in the form of penalties from governmental authorities, such as code enforcement agencies, zoning boards, HUD, or fire inspectors. However, a landlord can ask for an accommodation from such agencies on behalf of disabled tenants and has standing to sue if he or she is harmed by the denial of the accommodation. San Pedro Hotel Co. Inc. v City of Los Angeles (9th Cir 1998) 159 F3d 470.
Effecting a fundamental change. An accommodation that would require a landlord to fundamentally alter the nature of his or her business is not reasonable. For example, a landlord who does not want to participate in government programs is not required to accept Section 8 certificates as an accommodation. Salute v Stratford Greens Garden Apts. (EDNY 1996) 918 F Supp 660, aff'd (2d Cir 1998) 136 F3d 293.
If a tenant has a disability, has made an accommodation request, and has demonstrated that the accommodation is necessary, and the landlord cannot show that the accommodation would impose an undue cost or effect a fundamental change, the landlord must grant the accommodation. If the accommodation requested does not meet all the requirements (if it costs too much, for example), the landlord should inform the tenant why the accommodation was denied, so the tenant can propose an alternate (less costly) accommodation. This, then, is the accommodation dance.
In the eleven years that these requirements have existed, the courts have addressed only some of the potential accommodation scenarios. Because of the relatively small impact on the landlord, courts have required landlords to make exceptions to no-pet policies to allow service animals. Green, 994 F Supp 1253 (hearing-assistance dog); Bronk v Ineichen (7th Cir 1995) 54 F3d 425; see also 24 CFR §100.204(b)(1) (seeing-eye dog). This has included companion animals that provide emotional support to people with mental health disabilities. Majors v Housing Authority (5th Cir 1981) 652 F2d 454; Whittier Terrace Assocs. v Hampshire (Mass App 1989) 532 NE2d 712. California Code of Civil Procedure section 54.1 also addresses the issue of tenants with service animals.
Parking spaces are another hot topic. When a disabled person who needs a close-by space is lower on the waiting list than nondisabled tenants, who may have been waiting for years, the landlord must move the disabled person to the top of the waiting list. Shapiro, 844 F Supp 116. Not having a reserved space close by is an inconvenience for the nondisabled tenant but is often an insurmountable barrier for the disabled tenant. Jankowski, 91 F3d 891; see also 24 CFR 100.204(b)(2) (creation of reserved space).
The accommodation issue may also arise when a tenant is being evicted for behavior related to his or her disability. For example, one tenant with schizophrenia had hallucinations and hit the wall of her apartment repeatedly with a broomstick, causing minor damage. The tenant explained that the damage was caused by the symptoms of her disability and agreed to participate in a new counseling program. The court said the landlord must make an accommodation by not continuing with the eviction. Citywide Assocs. v Penfield (Mass Hsg Ct 1989) 2 FH-FL 18,079.
Tenants whose behavior seriously disturbs neighbors will be eligible for accommodations if they can show that the disturbance has stopped or will be ameliorated. Housing providers need not rent to tenants who pose a direct threat to the health and safety of others or of substantial property damage. 42 USC §3604(f)(9). However, landlords must consider accommodations for all behavior caused by a disability, even threats or violence. Roe v Housing Authority (D Colo 1995) 909 F Supp 814 (landlord must show that no reasonable accommodation would eliminate or acceptably minimize risk to others); Roe v Sugar River Mills Assoc. (D NH 1993) 820 F Supp 636 (accommodation must be attempted). However, the greater the harm caused by the behavior, the greater the assurances of change must be for the accommodation to be "reasonable."
Any part of the application procedure, tenancy, or eviction process can be the subject of a reasonable accommodation request. Although the statutory language refers to accommodations that allow the tenant to "use and enjoy the dwelling," accommodations have been considered valid even when a tenant is moving out of an apartment. Courts have sanctioned accommodations such as releasing a tenant from a lease early (Samuelson v Mid-Atlantic Realty Co. Inc. (D Del 1996) 947 F Supp 756) or postponing an eviction action (Anast v Commonwealth Apts. (ND Ill 1997) 956 F Supp 792). A tenant can bring up an accommodation request at any time in the eviction process. If a landlord knows of a tenant's disability and need for accommodation before the tenant is physically evicted (even after notice to vacate has been given), the landlord must consider the accommodation. Radecki v Joura (8th Cir 1997) 114 F3d 115; Stephenson v Ridgewood Village Apartments (WD Mich) 1994 WL 792581.
Because accommodations depend on the specific symptoms and requirements of an accommodation, no exhaustive list is possible. For example, courts have suggested that landlords give tenants with disabilities more time to comply with fire code requirements (Schuett Investment Co. v Anderson (Minn App 1986) 386 NW2d 249), move disabled tenants to more accessible apartments (Roseborough v Cottonwood Apts. (ND Ill 1996) 1996 WL 490717), and keep sidewalks clear of snow for the safety and access of a disabled tenant (Lindsey v Nob Hill Partnership (Wis App) 1995 WL 539889).
Reasonable accommodation cases present a perfect opportunity for preventive work. Landlords with written accommodation policies and procedures rarely find themselves in trouble.
Within one year of an accommodation denial (42 USC §3610(a)(1)(A); Govt C §12980(b)), tenants can file administrative claims with the HUD Fair Housing Office, 450 Golden Gate Avenue, San Francisco, CA 94102, or the state Department of Fair Employment and Housing (DFEH, 800/233-3212, www.dfeh.ca.gov). These agencies investigate claims, attempt conciliation, and, if discrimination is found, proceed to enforcement-typically a hearing before an administrative law judge. The process provides ample opportunities for negotiation since the investigation stage can be quite lengthy. See Govt C §§12980 (100 days), 12981. However, unlike employment discrimination claims, there is no exhaustion requirement of administrative filing before litigation. 42 USC §3613(a)(2); Govt C §12989(a). The state agency's power to award emotional distress damages is currently being reviewed by the California Supreme Court. Konig v FEHC (2000) 93 Cal Rptr 2d 690, review granted (June 28, 2000) No. S087843.
The statute of limitations for both FHAA and FEHA litigation is two years, although it is an open question whether the two years run from the first time the request is made or the last. The statute is tolled while the claim is with HUD or DFEH. 42 USC §3613(a)(1); Govt C §12989.1. Experience has shown that these cases are almost never resolved by a motion to dismiss because of the highly factual "reasonableness" determination required. For the same reason, summary judgment motions by defendants require strong evidentiary support that one of the necessary elements is absent.
At trial the parties must present evidence regarding the DANCE elements described earlier. The plaintiff has the burden of proving the existence of the disability and the need for accommodation. The circuit courts do not agree whether the burden of proof is on the tenant to show that the accommodation is reasonable or on the landlord to show that an accommodation is unreasonable. Compare Elderhaven, Inc. v City of Lubbock (5th Cir 1996) 98 F3d 175 (tenant) with Hovsons, 89 F3d 1096 (landlord). The Ninth Circuit has not specifically addressed this issue but has listed the required elements of a plaintiff's prima facie accommodation case without including the reasonableness of the request. See California Mobile Home Park, 107 F3d 1374, 1380. Placing the burden on the landlord, who presumably has the best access to information relating to undue burden, would parallel the Ninth Circuit's practice in employment accommodation cases. See Barnett v U.S. Air Inc. (9th Cir 2000) 228 F3d 1105, 1113.
If an accommodation case proceeds to judgment for the plaintiff, damages can include injunctive relief; compensatory damages, including emotional distress; and punitive damages. 42 USC §3613(c)(1); Govt C §12989.2; CC §§55, 55.1. Prevailing plaintiffs are entitled to attorneys fees.
Kerstin Arusha is the directing attorney of the Fair Housing Law Project in San Jose.