Your tenant refuses to allow an exterminator into his apartment to combat mice and roaches. The tenant's poor housekeeping may have contributed to these problems. When you send an eviction notice, the tenant tells you he has a long-term illness and needs more time to prepare for the exterminator. You file an unlawful detainer action, and the tenant's attorney writes to you that the tenant is disabled. What do you do?
The Eighth Circuit recently ruled that a landlord has a duty under the Fair Housing Act to reasonably accommodate a tenant's handicap up to the actual date of eviction. While the tenant's statement that he was ill may not require an accommodation, the landlord's duty became clear when the attorney wrote about the tenant's disability even if the eviction process had already begun. Radecki v. Joura 114 F.3d 115 (8 Cir., 1997).
The Fair Housing Act, 42 U.S.C. §§ 3601 et seq., prohibits discrimination in housing on the basis of "handicap," which includes:
A physical or mental impairment which substantially limits one or more of a person's major life activities;
A record of having such an impairment; or
Being regarded as having such an impairment.
Under this law, no protection is given to current, illegal use of controlled substances. However, former drug users in recovery programs are protected. People who are transvestites are not considered handicapped. These very limited exceptions show how broad the definition of a handicap really is. In Congressional debates on the amendments which made handicap discrimination in housing illegal, Senator Harkin estimated that as many as one in six Americans could be considered handicapped. 134 Cong. Rec. S10463 (1988). Indeed, the protection of the law is even broader, since discrimination on the basis that a tenant's family, friends or associates are disabled is also forbidden.
In general terms, the law forbids discrimination against the handicapped in the sale or rental of housing, including making the housing unavailable or refusing to rent, or to discriminate in the terms, conditions or privileges or in the provision of services or facilities. 42 U.S.C. § 3604(f). This section defines three particular obligations of the landlord.
1. The landlord must allow a disabled tenant at the tenant's expense to make reasonable physical modifications to the unit provided the tenant agrees to restore the unit (when reasonable) to its prior condition, normal wear and tear excepted.
2. The landlord must make reasonable accommodations in rules, policies, practices or services, when the accommodations may be necessary to afford the disabled person equal opportunity to use and enjoy the dwelling.
3. In new construction, specified accessibility features must be included.
Except for the mandatory features in new construction, the landlord's duty depends on whether a change from normal policy is necessary to afford the disabled person equal opportunity to use and enjoy the dwelling and also on whether that accommodation is reasonable.
To win a discrimination suit, a tenant must show that the person suffers from a handicap; the landlord knew of the handicap or reasonably should be expected to know of it; accommodation of the handicap "may be necessary" and the landlord refused to make an accommodation. HUD v. Ocean Sands, Inc. (HUD ALJ 1993) Fair Housing-Fair Lending Rptr. ¶ 25,055.
A tenant can usually prove the first point, that he or she suffers from a handicap and is protected. Almost any physical or mental condition that affects a major life activity qualifies as a handicap. In addition to obvious disabilities such as visual impairment and confinement to a wheelchair, the law protects those who suffer from alcoholism and drug addiction (but not current use of drugs), emotional and mental problems such as depression, bi-polar personality disorder and Alzheimers, HIV infection (even without AIDS symptoms), learning disabilities, and many of the difficulties of mobility that come with old age.
The second issue the tenant must prove is sometimes tricky. The landlord knows or should know of a handicap if the tenant tells him about it. However, a landlord may not ask a tenant or new applicant whether the person is disabled, what kind of disability he or she has or how severe the disability is. 24 CFR § 100.202 (c). California Government Code § 12955 (b). A landlord may not ask whether a handicapped applicant can live without assistance or requires treatment or medication. Cason v. Rochester Housing Authority 748 F.Supp. 1002 (W.D.N.Y., 1990). A landlord may not assume that a person is handicapped even if they are in a wheelchair; nor that they are not disabled even if they appear to be able to function normally. At best, a landlord may request documentation or invite the tenant to engage in a "dialogue." Jankowski Lee & Associates v. Cisneros 91 F.3d 891 (7 Cir., 1996).
The Ninth Circuit considered the third issue, when an accommodation "may be necessary," in United States v. California Mobile Park Management Co. 107 F.3d 1374 (9 Cir. 1997). There, a disabled tenant requested an exemption from guest parking fees for a caregiver, who came almost every day and incurred fees of $175 per month. The tenant finally lost her second appeal. The Court found no proof that the caregiver's car was needed to provide services for the handicapped 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. "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."
The fourth point, the landlord's refusal, is usually not contested; but an extended delay in responding may be treated as a refusal. The Ocean Sands case involved a delay of over two years until the disabled person died.
The landlord is only required to make a "reasonable" accommodation, but the Courts are divided about who must prove that an accommodation is reasonable. The Fifth Circuit says the plaintiff must prove it. Elderhaven, Inc. v. City of Lubbock, Texas 98 F.3d 175, 178 (5 Cir., 1996). The Third Circuit says this is the defendant's burden. Hovson, Inc. v. Township of Brick, New Jersey 89 F.3d 1096, 1103 (3 Cir., 1996).
In its first opinion in the California Mobile Park Management case, the Ninth Circuit said that whether an accommodation for a disabled person is required ". . . is highly fact-specific, requiring case-by-case determination." 29 F.3d 1413, 1418 (9 Cir., 1994). The Seventh Circuit has held that reasonableness is decided by a cost-benefit analysis in which the cost of the accommodation to the landlord is compared to its benefit to the tenant. Bronk v. Ineichen 54 F.3d 425 (7 Cir., 1995). This makes it hard to determine without a court ruling (and sometimes appeals) whether a tenant's request must be honored.
In the case we began with, the landlord might consider whether the tenant requested a specific and limited delay of the exterminator's visit or an unending postponement that could stretch forever. Balance the disabled tenant's needs against the seriousness of the harm to other tenants and to the landlord from delaying the extermination. If other tenants will likely move out, the landlord could expect substantial loss of rent income and expense in preparing for new tenants.
The landlord could invite a dialogue or request documentation showing why the delay requested would be a reasonable accommodation for the tenant's disability. For example,the landlord could ask: "If you are disabled and require an accommodation to afford you an equal opportunity to use and enjoy the dwelling, please state what accommodation you need and what facts show that this reasonable." When you reach this point, you should consult an attorney to discuss your particular situation.
Copyright © 1998 Martin S. Snitow Law Corporation. All rights reserved.
Back to Home Page