Under both state and federal fair housing law, housing providers cannot discriminate against a person with a disability OR anyone associated with a person with a disability because of the person’s disability. In other words, both a person with a disability and a buyer, renter, or borrower who lives with, or is associated with that person is protected from disability discrimination.
Reasonable accommodations and modifications
Accommodations are changes, exceptions, or adjustments to rules, policies, practices, and services that would enable a tenant or applicant with a disability to fully enjoy a housing unit and/or public and common use areas. Common examples of requests for reasonable accommodations that involve exceptions to rules and policies include waiving a “no pet” rule to allow a service animal or creating an assigned accessible parking space for a person with a mobility disability where parking spaces are not normally assigned. Another example of a reasonable accommodation is allowing a tenant with a disability to move to a different apartment in a complex that would better accommodate the tenant’s physical mobility disability.
Modifications require a structural change such as putting in a ramp, widening doorways, or adding grabs bars that would enable a tenant or applicant with a disability to fully enjoy a housing unit and/or public and common use areas. Generally, if the housing unit is owned by a private individual, he/she may be required to allow the tenant or prospective tenant to make the modification. However, the tenant must pay the cost of the modification and, under most circumstances, must remove the modification when he/she moves out. If the property is owned by a government entity or housing provider that receives federal assistance, the tenant does not have to pay for the modification.
Generally, housing providers are legally required to provide an accommodation for a person with a disability or permit a person with a disability to make a modification to a dwelling IF the tenant or prospective tenant has a disability and requests an accommodation or modification that would allow him/her full enjoyment of his/her housing (i.e., there is a nexus between the requested accommodation or modification and the individual’s disability).
In addition, in the case of requests for accommodations, the requested accommodation must be reasonable – does not impose an undue financial or administrative burden on the housing provider or fundamentally alter the nature of the provider’s operations. The determination of whether an accommodation constitutes an undue financial or administrative burden must be made on a case-by-case basis. Factors that should be considered include the cost of the requested accommodation, the financial resources of the housing provider, the benefits that the accommodation would provide to the requester, and the availability of alternative, less expensive accommodations that would effectively meet the disability-related needs of the requester.
A resident or applicant for housing may ask for an accommodation or request permission to make a modification at any time. The resident or applicant should make it clear to the housing provider that he/she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of his/her disability (reasonable accommodation) or that he/she is requesting permission to make a structural change to the dwelling because of his/her disability (reasonable modification). The tenant or applicant should explain that he/she has a disability, if not obvious or known to the housing provider, the type of accommodation or modification he/she is requesting, and the relationship between the requested accommodation or modification and his/her disability. Alternatively, the request can be made by a family member or someone else acting on behalf of the resident or applicant with a disability.
If a person with a disability requests that a property owner, manager, or other person with the authority to make housing decisions provide a reasonable accommodation, it is recommended that the person making housing decisions engage in a discussion with the person requesting the accommodation. This discussion is called an interactive process. This would enable the tenant/applicant and housing provider to identify any alternative accommodations in case the accommodation initially requested is not reasonable (i.e., causes an undue financial or administrative burden on the housing provider).
FAQ - Can a property owner/manager require that a person with a disability use a specific form or words or process to request an accommodation or modification? No. A person may request a modification or accommodation in writing or orally, even if the housing provider has a different or no policy and procedure about requesting accommodations or modifications. The person requesting it does not have to use the actual words “reasonable accommodation” or “modification.” However, it is recommended that a request be made in writing because it creates evidence of having made the request.
FAQ - Is my landlord or property manager entitled to see my medical records if I request a reasonable accommodation or modification? No. They may ask for information that verifies that a person has a disability that qualifies for a reasonable accommodation or modification. They can seek a description of the requested accommodation or modification and information that shows the relationship between the person’s disability and the requested accommodation/modification. For instance, an occupational therapist might write a note stating that a tenant needs a wheelchair on a regular basis and because of the wheelchair use he/she needs a parking place close to his/her front door with a clear path to his/her door. This information does not state the medical reason that the person needs to use a wheelchair; the property owner is not entitled to that information.
An assistance animal is one type of assistive aid that a person with a disability may need. The most common animal used as an assistance animal is a dog. However, assistance animals can be any animal that alleviates some limitation of a qualifying disability.
Housing complexes that have “no pets” rules or policies are required to make accommodations in those rules or policies to allow a person requiring an assistance animal to live with his/her assistance animal in that complex. A person who has an assistance animal is required to keep his/her animal under control and reasonably quiet. A person with an assistance animal is also required to clean up after the animal.
An assistance animal is NOT a pet; it must assist a person to overcome a limitation related to his or her disability. For example if a person’s disability is hearing related and a dog is trained to guide a person who is blind, that dog would not be an assistance animal for the person with a hearing disability. There must be a nexus between the assistance the animal provides and the needs of the person with a disability.
FAQ - I can understand letting someone have a dog for an assistance animal but I have heard that these days people have pigs, horses and birds for assistance animals. Do I have to allow these animals into my housing complex too? An assistance animal does not have to be a dog. Cats, birds, monkeys and other animals have been recognized as assistance animals.
FAQ - Do I have to provide a certificate that shows my assistance animal is trained to be an assistance animal? No.
FAQ - I do not allow dogs in my rental units because it increases my insurance costs and dogs wear out the carpet faster. Can I charge a person with an assistance animal more to cover these additional costs? No. It is unlawful to charge a higher security deposit or higher monthly rent to a person with an assistance animal. However, property owners retain the right to exclude any animal that causes property damage beyond reasonable wear and tear.
FAQ – Is there such a thing as a companion animal? Yes. There are situations where a person with an emotional disability benefits from the presence of an animal that provides companionship and does not perform any specific physical task. A property owner may be required to allow a companion animal in a rental unit if a tenant has an emotional disability. There is increasing recognition by HUD and courts of the right of persons with psychiatric disabilities to have a companion animal, even if that animal is not trained to do any specific task.
FAQ – Is there a difference between an assistance animal and a service animal? Yes. Assistance animal refers to any animal that assists a person with a disability to ameliorate a limitation caused by his or her disability. Assistance animal is a term used in housing situations. An assistance animal does not need to be trained to do a specific task. However, a property owner may ask a tenant/applicant who has an assistance animal to provide a statement from his/her doctor, counselor, therapist or other third party who would know that the tenant/applicant has a qualifying disability and that an assistance animal is needed to ameliorate some limitation caused of the tenant’s/applicant’s disability. Landlords may NOT ask what the tenant’s/applicant’s disability is – they are not entitled to that information. A service animal is a dog (or in limited situations, a miniature horse) that has been individually trained to perform tasks directly related to its owner’s disability. The term service animal is used in reference to animals that accompany a person with a disability in a place of employment or place of public accommodation such as a restaurant, store, theatre or bus. A guide dog is one example of a service animal.
Many disabilities are not visually apparent. Emotional and psychiatric disabilities and some physical disabilities are not apparent when meeting or talking to a person. Like visible disabilities, if the “invisible” disability affects a major life activity, that person could also qualify for a reasonable accommodation or modification.
FAQ - My brother was diagnosed with bi-polar disorder. Sometimes he has been very violent toward me. I think it could be dangerous to rent to people who are bi-polar. Is it okay to not rent to people who are bi-polar? No, you cannot make a decision about a prospective tenant based on your personal experiences with your brother’s bi-polar disorder. Disabilities and their impact on people vary from person to person; you cannot make a blanket determination regarding all persons diagnosed as bi-polar or any other psychiatric disability. Nonetheless, a property owner does not need to rent to someone if that person is dangerous to other people. However, the determination as to whether someone is a direct threat to the safety and well-being of others must be made on a case-by-case basis. If a person has not been a danger to other people, then you cannot refuse to rent to them because they have been diagnosed with bi-polar disorder. Conversely, if a particular person has been arrested 3 times in the past month for hurting other people, you could probably refuse to rent to that person because he/she is an actual threat to other people.
FAQ - I do not want to rent to drug dealers or alcoholics. Is that okay? It could be. You are not required to rent to active illegal drug users or dealers. However, if a person is in recovery, you cannot refuse to rent to them because they abused alcohol or drugs in the past. Decisions should be made on a case-by-case basis rather than based on generalizations about persons in recovery. If a potential tenant has been in recovery for 1 week and has a recent history of destroying property or harming others, that may be a legitimate reason to refuse to rent to him/her. However, if someone has been in recovery for over year without incident, you probably cannot refuse to rent to him/her because of his/her alcoholism.