Both federal and California fair housing laws require a property owner to make a reasonable accommodation to its policies and services when necessary to allow a disabled tenant or applicant to use and enjoy the unit and facilities on the same terms as those who are not disabled. The key is that the proposed accommodation must be reasonable in its effect and necessary for the disability. 42 U.S.C. § 3604(f)(3)(B). Courts have ruled that whether an accommodation must be offered is an intensely factual question which must be analyzed carefully in each case. United States v. California Mobile Home Park Management Co. 107 F.3d 1374, 1380 (9th Cir., 1997).
Sometimes a request seems over the top. In Janush v. Charities Housing Development Corp. 169 F. Supp. 2d 1133 (N.D. Calif., 2000), an applicant signed a lease with a no-pets clause and moved into the rent-subsidized, 190 square-foot efficiency unit in San Jose with her two cats and two parrots!
After a maintenance worker noticed the pets, the tenant requested permission to keep both cats and both parrots as an accommodation for her mental disability. She produced a note from her psychiatrist stating that both cats and parrots were necessary to reduce the effects of her disability. When no agreement was reached, owner sent an eviction notice for breach of the lease. The tenant moved out and sued for damages under the Fair Housing Act.
The property owner's attorney filed a motion to dismiss and submitted only three pages of legal argument. This motion cited not a single court decision as precedent. It argued only that there was a risk that the no-pets policy would be "overrun" by demands for accommodations. Understandably, federal judge Ronald M. Whyte was unconvinced. He denied the owner's motion to dismiss and allowed the case to proceed.
The next round had a better outcome. Judge Whyte granted the owner's new motion seeking summary judgment. Fair Housing-Fair Lending Reporter (Aspen Law & Business) ¶ 16,619 (N.D. Calif., 2001). This time the facts were presented in great detail. The tenant had initialed each page of the lease, including the one with the no-pets clause. The tenant even watched a video describing the policy. Before she moved in, the tenant discussed the policy with the manager, who said perhaps small birds in a cage might be allowed. The tenant didn't mention her cats because the owner was "already up in the air about the birds, so I figured they would be really up in the air about the cats."
After discovery of the animals, the owner offered compromises, such as permitting the tenant to keep some but not all of the pets. The tenant refused to consider giving up any of her animals. That was her fatal mistake. Said the Court: "In addition to failing to disclose her two cats before moving into her apartment...plaintiff never budged from her demand after move-in that she be allowed to keep all four animals." While the tenant offered some evidence that she needed both a cat and a parrot, she did not say why she needed more than one of each species.
The Janush case shows that an owner does not automatically have to accept whatever requests a disabled tenant may make. Ms. Janush had an obligation to discuss her situation with the manager before she moved in and to engage in an "interactive process" to reach a fair solution. Both parties have to look for a solution in good faith, a solution that may involve compromises by both sides. Instead, the tenant's attorney sent a strong letter with a draft complaint to show she was serious about filing suit if the owner did not agree to allow all four animals.
A less determined owner, or one with less ability to pay for litigation, might have given in to the tenant's demand. This may not always be the safest course. If the owner allows an "accommodation" which is not reasonable or not necessary, other tenants who are not disabled may feel they are the victims of discrimination. If a single, white person is allowed to have a dog and the owner cannot show this was an accommodation for a disability, then families with children and persons of color may well believe they should have a dog, too.
Although requests for animals in no-pets units are common, they are certainly not the only accommodations requested by the disabled. In the California Mobile Home Park Management Co. case mentioned earlier, the disabled tenant sought a waiver of $175 monthly parking fees paid by a care giver. The Court found no proof that the caregiver's car was needed to provide services for the tenant, that the caregiver could not park outside the complex, that the caregiver could not pay the fees or that the caregiver's employer would not reimburse the parking fees. The Ninth Circuit found that the proposed accommodation was not "necessary" and rejected the claim, saying: "Without a causal link between defendant's policy and plaintiff's injury, there can be no obligation on the part of defendants to make a reasonable accommodation." However, it took two appeals to uphold the owner's $175 monthly parking charge.
Disabled tenants often ask for an assigned parking spot in a location chosen by the tenant. In Jankowski Lee & Associates v. Cisneros 91 F.3d 891 (6th Cir., 1996) a disabled tenant requested either an assigned parking space or an increase in the number of handicap spaces. The manager turned down this request because the tenant, although disabled, seemed capable of walking from any spot in the parking area. The manager did not request any documentation of the need for the requested accommodation and made his decision "on the spot" so to speak. Big mistake. The tenant had a continence problem which made a closer parking spot urgent. As the Court said, "If a landlord is skeptical of a tenant's alleged disability or the landlord's ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue."
Not every disability can or should be accommodated. The Supreme Court of South Dakota found that an apartment complex need not accommodate a brain-injured tenant who engaged in abusive and threatening behavior when no accommodation would end that problem. In Murray Construction L.L.C. v. Hicks, Fair Housing-Fair Lending Rptr. ¶ 18,307, the tenant claimed his brain injury made it difficult for him to park in his unit's garage as required, and he blocked a security gate because his hand tremors made it difficult to unlock the gate. The tenant also disturbed the neighbors with profanity and public nudity and acted in a threatening way. The Court found that the owner had a duty to attempt reasonable accommodations even when the tenant is a direct threat to the health and safety of other tenants, but only when those accommodations will eliminate or acceptably reduce the risks posed by that tenant. When the owner shows that no reasonable accommodation will curtail the risk, the duty to accommodate ends.
Not every accommodation which is necessary for the tenant is also reasonable. In Congdon v. Shrine 854 F. Supp. 355 (E.D. PA., 1994) a disabled tenant asked the court to order a new elevator be installed or that the owner repair it so it would operate virtually without interruption. The owner proved he had a maintenance contract for the elevator and had no reason to want the elevator not to work. The owner also offered the tenant a first floor apartment. Since a new elevator would cost $65,000 and the month-to-month tenant was free to leave on 30 days notice, the Court ruled that requiring that expenditure was not reasonable.
These cases show that an owner or manager who receives a request from a disabled tenant must seriously consider whether the accommodation is necessary and reasonable. Further discussions and a request for documentation often may be needed. Each case is unique and must be carefully evaluated. If possible, the owner should propose alternatives that would meet the tenant's needs with less cost and disruption. In case of doubt, the owner should obtain legal advice before deciding for or against the proposed accommodation.
Copyright © 2003 Martin S. Snitow Law Corporation. All rights reserved.
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