Both federal and state laws prohibit housing discrimination based on disability. The prohibition also applies to persons who are mistakenly perceived to be disabled, even if they are not. Under federal law, an individual is disabled if he or she has a physical or mental impairment that substantially limits one or more major life activities. California law is more expansive, and only requires that a person have a physical or mental condition that limits a major life activity to be considered disabled. State law does not require that the limitation be substantial.
There are three types of disability discrimination. The first is the traditional, run-of-the-mill discrimination that a person with disabilities may face. For example, this includes a refusal to rent to someone who uses a wheelchair or who has a developmental disability, or a denial of housing because of the belief that the person cannot live independently. More traditional types of disability discrimination also include evictions or different treatment because a property manager believes a person with a mental health condition is dangerous.
The second type of disability discrimination occurs when a housing provider fails to comply with the design and construction requirements as defined in the federal Fair Housing Act. Multifamily buildings constructed after 1991 must be built in a way that is accessible to persons with disabilities. Certain renovation projects must also be built with an eye towards accessibility.
Persons with disabilities are also entitled to special protections called reasonable accommodations and reasonable modifications. The third, and most common, type of disability discrimination occurs when a housing provider wrongly refuses to grant these requests, places inappropriate conditions on such requests, or demands more information than he or she is entitled to.
A reasonable modification is a physical change to the building that is needed so a person with a disability can physically access and fully use the property. Examples include a wheelchair ramp, grab bars for the shower, and removal of carpet. Modifications are not restricted to the inside of a tenant’s unit, but may include modifications to common areas. Housing providers must merely permit tenants to make modifications – the disabled tenant must pay for the cost of a modification. The only exception to this rule is when the tenant lives in federally funded housing. A property that was built, renovated or insured with federal funds must pay the cost of a modification.
A reasonable accommodation is a change in a rule, practice, or policy that is necessary for a person with a disability to have an equal opportunity to access and enjoy the housing of her choice. Reasonable accommodations generally involve an exception to or waiver of a policy. Sometimes, there may be a small cost associated with the request. A housing provider may only deny a valid reasonable accommodation request if granting it would be an undue financial and administrative burden, pose a health or safety issue, or require a fundamental alteration in its program.
The list of possible reasonable accommodation requests is never-ending. However, below are the most common requests that we see at Project Sentinel.
Housing providers are required to waive some of their pet-related policies if a person with a disability has a service animal or an emotional support animal. Assistance animals do not require any special training. Housing providers must permit a tenant to have an emotional support animal, for example, that is untrained if the tenant provides a note from his doctor certifying a disability-related need for the animal. In some situations, a tenant may be allowed to have more than one assistance animal.
It is illegal to limit the size or breed of an assistance animal. However, if there is sufficient proof that a particular animal is dangerous, a housing provider does not need to allow that animal on the property. Assistance animals and their owners may be required to exhibit good behavior, such as following leash rules, and to follow local licensing and vaccination laws. Note, however, that registration as a service animal is not required under the Fair Housing laws. In fact, service animal registries are generally operated by private businesses, are unregulated, and often do not require proof of disability. There is no central federal or California registry. Tenants with assistance animals cannot be required to pay any special rent or deposit, though the tenant will be responsible for any damage caused by the animal.
A housing provider may be required to assign a disabled tenant a parking spot, even if it is its policy normally not to do so. Parking spot accommodations may also include restriping to create an accessible spot and swapping spots so the tenant has a closer spot to his unit. Even though there may be some small cost associated with a parking accommodation, the request cannot be denied on this basis alone. The cost must be an undue financial burden for a denial to be valid.
Tenants with disabilities are entitled to have visiting or live-in caregivers without repercussion. If it is the housing provider’s policy to conduct background checks on all prospective tenants, then the housing provider may require a live-in caregiver to submit to such a check. Live-in caregivers, however, are not tenants. Their financial qualifications are irrelevant, as they are not paying rent. They should not be placed on the lease as a liable party. Caregivers, however, must follow all house rules. A caregiver who breaks the property’s rules should be asked to leave, and the disabled tenant should be given a chance to find another, more responsible caregiver.
The law does not require a housing provider to charge a disabled tenant less rent, or forego proof of financial responsibility. However, a prospective tenant who does not earn enough money because of their disability should be permitted to have a cosigner. Tenants whose poor credit is directly related to their disabilities should also be given a more individualized assessment. Medical bills or a long-term illness are often the cause of poor credit, and do not reflect a tenant’s ability to be responsible or pay the rent. A housing provider should look to see if the tenant is currently paying his or her bills, had good credit before the injury or illness, or has income that cannot be taken by a creditor.
If a tenant receives a monthly disability check that does not arrive on or before the first of the month, the housing provider should work with the tenant to move the rent due date to coincide with the day on which the check is usually received. Late fees should be waived.
At times, a tenant’s disability may make it difficult for him or her to comply with the lease. Depending on the circumstances, the housing provider may be required to give the tenant a second chance. The tenant may be required to agree to certain terms and conditions, such as seeking treatment so as to not be a danger to other tenants and staff.
Requests can be made in writing or verbally, and a person need not use any special words to trigger a housing provider’s duty. If a tenant makes any request and mentions that it is related to a medical condition, it is best to treat it like an accommodation or modification request.
If the disability or the disability-related need is not obvious, the housing provider can request verification from a medical professional or other reliable third-party who is knowledgeable about the requester’s disability. A social worker, case manager, peer support group moderator, or a caregiver may write a verifying note. The note should verify the disability and the connection between the disability and the requested accommodation. Housing providers aren’t entitled to know a diagnosis. However, if it isn’t clear what the tenant needs, or how it relates to the disability, the housing provider can ask for more information.
Housing providers must respond in a reasonable amount of time, and all parties have a duty to engage in the interactive process. This means that everyone should keep the lines of communication open, and, if a request isn’t reasonable, should be open to discussing viable alternatives.
Project Sentinel understands that this will not always be an easy process, and encourages housing providers and tenants to contact us for assistance.
Project Sentinel cannot emphasize enough the importance of affording persons with disabilities the dignity to make decisions about whether a particular dwelling meets their needs. Even though it may be well meaning, persons with disabilities are in the best position to determine whether a unit is safe and accessible, and whether a reasonable accommodation or modification is necessary.
Please also be mindful that health-related information is private. Not everyone wants to discuss his or her disability, and it is important to guard all relevant health information should a person make an accommodation or modification request.
A housing provider who illegally denies or fails to respond to a reasonable accommodation or modification request, or unreasonably delays the process, has committed an act of disability discrimination. Other types of disability discrimination include: