HOUSING AND “REASONABLE ACCOMMODATION”
By Bob Cain
2000 Cain Publications, Inc.,
used by permission
piece of the Fair Housing Law is probably the most convoluted, confusing
one of all for landlords to deal with. It requires that you make special
provisions for people with handicaps, defined as "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." US Fair Housing Act.
Disabled people must be
provided "reasonable accommodation" so that they will be able to
enjoy their dwelling in the same way as a non-disabled person. Most
landlords realize that we must allow physically disabled people to make
changes in the unit at their own expense so that they can more easily use
it. That might include grab bars in showers and tubs, lower light
switches, lower counter tops, different door hinges, etc. We can
also require a deposit that would pay for putting the property back the
way it was when they move.
If it were only that
simple. The law has been carried to the extreme to provide handicapped
people the same "enjoyment" as non-handicapped people. One
example would be in the assignment of parking spaces. Many apartment
complexes assign parking spots in order of seniority. So you have
John Smith, who has lived in the complex going on 20 years now, and who
has earned a spot in front of his unit. Along comes a new, disabled
tenant who says that because he is physically disabled he needs a parking
spot right in front of his door, the same one that good old John Smith is
now entitled to. In order to provide "reasonable
accommodation" to this new person, you have to kick John out of his
hard-earned spot and give it to the new guy.
One particular court case
illustrates exactly that. An apartment owner in Cadman Towers, a
cooperative apartment complex in Brooklyn, NY, Ms. Shapiro, had multiple
sclerosis. As a result she had fatigue, severe headaches, loss of
coordination and difficulty walking. Sometimes she even needed a
Indoor parking spaces were
at a premium at Cadman Towers. Their policy was to provide owners with
parking on a first-come, first-served basis. You got an indoor parking
spot by putting your name on a waiting list and waiting your turn.
Even though Shapiro had a
handicapped-parking sticker, she said that parking on the street was
difficult and that a commercial garage was too far away. Because of these
delays in finding parking, she would often have urinary
Shapiro asked the complex
for an indoor parking spot. The board of directors turned her down and
said she'd have to wait her turn, just like everybody else. Shapiro's
attorney wrote the board asking for reasonable accommodation and an
immediate spot for Shapiro. The board replied that she'd get
"reasonably accommodated" when her name came to the top of the
Shapiro filed a Fair
Housing complaint. After its investigation HUD found evidence of
discrimination and filed a charge against Cadman Towers. Shapiro sued and
asked the court to order the complex to give her a parking spot
immediately, even before the trial.
After hearing testimony,
the court agreed. Cadman Towers appealed, but lost. Under the Fair Housing
Act, the court ruled, the complex had to make reasonable accommodations so
Shapiro could use and enjoy her apartment. "Reasonable
accommodations" could include reserving parking spaces for
mobility-impaired tenants as a "modest" adjustment to
Citation: Shapiro v.
Cadman Towers, 51 F.3d 328 (New York) 1995.
If it were only the
physically disabled, there would be few problems. But the
"disabled" also include alcoholics, recovering drug addicts,
people with various mental disorders, and people with "behavior"
As a landlord, you are not
required to have a crystal ball to discover the "reasonable
accommodation" required by any of your tenants, they must tell you,
usually in writing. (In fact, you cannot even offer "reasonable
accommodation": to do so is in itself a probable violation of the
Fair Housing Law.) But once they tell you, you must change your policies,
procedures and rules, and make structural modifications in common areas to
accommodate these folks.
One example would be for a
mentally disabled person who was creating a disturbance for other
residents. Normally, you would do one of two things. One is that you
might send the tenant official warnings that his behavior was outside the
bounds of the rules of the complex. Or you might serve such a person with
a ten-day or 14-day notice (depending on your state) to clean up his
behavior or move. If he didn't change his behavior, you would evict
What happens is that you
serve the notice to comply with the rental agreement and he takes the
notice to his psychiatrist who refers him to an attorney. You get a
letter from the attorney saying that the tenant is under the care of a
physician for the problem and is beginning a program of medication that
should correct the problem. Thus, if you proceed with the eviction,
you could be violating the Fair Housing law.
In this case, you would
probably have to allow a reasonable length of time for the medication to
improve the behavior of the tenant. You can also require a letter
from the psychiatrist explaining that this tenant is having a problem that
is under treatment.
No, you don't have to
tolerate it forever. You only have to make "reasonable
accommodation" for this person. What is reasonable? Good
question. For that answer you had better speak with your attorney.
(That is one thing that the Fair Housing law has done: made lots of work
You are not required to
make any changes if they would change the nature of your housing program.
For example you need not supply an on-site psychologist. You also need not
make any changes if it would place an undue financial or administrative
burden on you.
1. Never suggest that you
could do anything to provide "reasonable accommodation" to a
tenant, require that he or she make the request.
2. Require that the
tenants supply proof that reasonable accommodation is necessary (as in the
case of strange behavior), and that they are not just common,
run-of-the-mill bad tenants.
3. If you have a question
or concern, get legal advice to find out what your rights and
responsibilities are and to make sure you are acting properly.
Robert Cain is a nationally-recognized
speaker and writer on property management and real estate issues. For a
free sample copy of the Rental Property Reporter call 800-654-5456 or
visit their web site at