What is Reasonable Reasonable Accommodations in Housing Law

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, 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

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 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

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, 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 n. Demand letters n. Negotiated settlements n. Complaints to HUD, MDHR, or a local agency n. 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. or g

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