Jessica S. Weisman, Managing Partner of Client Education | Kimball, Tirey & St. John LLP
Disability is the most common basis for the filing of housing discrimination complaints in California and nationally. According to the California Department of Fair Employment and Housing (DFEH) 2016 Annual Report, 39% of the housing complaints filed were based on mental or physical disability. According to The Office of Fair Housing and Equal Opportunity (FHEO), in 2016, out of 8,385 complaints, over 50%, 4,908, were based on disability.
Under federal and state fair housing laws, residents of rental housing who have disabilities are entitled to two rights that are not available to residents without disabilities. Residents with disabilities may make “reasonable modifications,” which are physical changes to the premises such as installing grab bars. They are also entitled to be granted exceptions to the normal rules, policies practices or services. Such exceptions are called accommodations and may include things such as granting a resident with a disability the opportunity to have a companion animal despite a “no pet” policy, or allowing a co-signer/guarantor in a property that normally does not allow co-signers. Many disability-related cases involve an alleged failure of a landlord to grant a request for a reasonable accommodation.
The Fair Housing Amendments Act (FHAA) defines discrimination as including “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] equal opportunity to use and enjoy a dwelling.” 42 U.S.C. §3604(f)(3)(B).
The threshold issue in determining whether a reasonable accommodation request must be granted is whether the resident in question meets the California definition of disability. If the disability is apparent, no verification of disability is required. If the disability is not apparent, the applicant or resident may be required to provide verification that he/she meets the California definition of disability. There can be NO inquiry into the nature or extent of the disability, but the landlord has the right to confirmation that the person qualifies as disabled. For an exception to the rules to be granted, the person with an apparent or verified disability must also have a disability-related need for the requested exception. That is, granting the request must be necessary in order for the resident to be able to use and enjoy the rented premises on an equal basis. If the disability-related need is not apparent, it may be required to be verified as well.
Assuming there is a showing of disability and disability-related need, a landlord may not refuse a request unless it is “unreasonable.” Accommodations are generally considered to be reasonable unless they would constitute an “undue” financial or administrative burden on the landlord, or would fundamentally alter the nature of the services rendered by the housing provider. Some burden or cost is expected to be borne by the landlord. The analysis of whether a burden is “undue” is expected to take into account the resources available to the particular landlord in question. For instance, an accommodation that may not be an undue financial burden for a company that owns a large number of units may be unduly burdensome for an owner with fewer units. Courts have recognized that the reasonable accommodation inquiry is highly fact-specific, requiring a case-by-case determination. If a landlord determines that an accommodation request is unreasonable, he or she is expected to enter into an “interactive process” with the resident to attempt to negotiate a reasonable alternative accommodation.
Making a mistake in the analysis of reasonableness can be costly. In just one example, The DFEH negotiated a settlement with a San Francisco landlord which resulted in the landlord agreeing to pay damages in the amount of $1 million dollars for failing to accommodate a request for assignment of a more accessible parking space for a resident with a disability and for refusal to provide an extra key to the gated entry for the resident’s caregiver. Such frightening results underscore the importance of giving each and every accommodation request careful consideration.
Each request for a disability-related exception to rules, whether the accommodation involves a community policy or an economic/financial policy, should be considered on a case-by-case basis. It is wise to provide a complete fact profile to legal counsel for assistance in achieving an informed risk management analysis.
Kimball, Tirey and St. John LLP is a full service real estate law firm representing residential and commercial property owners and managers. This article is for general information purposes only. Laws may have changed since this article was published. Before acting, be sure to receive independent legal advice. For information about our services, please visit our website: www.kts-law.com.
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