How To Handle Transfer Requests From Residents With Disabilities
This month, the focus is on complying with fair housing requirements when faced with a request from a resident with a disability to transfer to a particular unit within a community.
In general, communities may adopt policies or rules restricting resident transfers, but communities have an obligation under fair housing law to provide reasonable accommodations to rules, policies, and practices when necessary to afford disabled individuals an equal opportunity to enjoy the premises. That means your community may have to make an exception to general rules restricting transfers, as a reasonable accommodation for an individual with a disability.
To avoid fair housing trouble, we'll give you eight rules for considering transfer requests as reasonable accommodations for residents with disabilities. Then, you can take the Coach's Quiz to see how much you have learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) makes it unlawful to discriminate against “any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities, in connection with such dwelling” on the basis of that person's disability.
Under the FHA, disability means a physical or mental impairment that substantially limits one or more major life activities, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The law protects anyone who has such an impairment, has a record of having such an impairment, or is regarded as having such an impairment.
Discrimination prohibited by the FHA includes failure to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford the disabled individual an equal opportunity to use and enjoy the dwelling. Although a resident or an applicant is not entitled to a reasonable accommodation unless he asks for one, the law does not require that the request be made in a particular manner or at a particular time, according to HUD guidelines. Furthermore, the request need not come directly from the person with the disability; the request may be made by a family member or someone acting on the disabled person's behalf.
The law requires that a requested accommodation be both reasonable and necessary to allow the disabled individual an equal opportunity to use and enjoy the dwelling. An accommodation is necessary when there is an identifiable relationship between the requested accommodation and the individual's disability. An accommodation is reasonable when it imposes no fundamental alteration in the nature of a program or an undue financial or administrative burden.
8 RULES FOR HANDLING TRANSFER REQUESTS FROM RESIDENTS WITH DISABIITIES
Rule #1: Establish Policies, Procedures for Handling Requests for Reasonable Accommodations
Generally, your community may establish a policy to restrict the ability of current residents to transfer to other units. However, if the need for the transfer is related to a disability of the resident or a member of his household, your community may be legally obligated to approve the request as a reasonable accommodation for an individual with a disability. If you refuse the request, you could trigger a complaint to HUD, accusing your community of disability discrimination.
Example: The owners and property managers of an Oregon community recently found themselves defending a complaint filed with HUD based on an alleged refusal to allow a family to transfer to another unit to accommodate their child's disability. According to a statement released by HUD in May 2008, the community allegedly refused the family's request to move to a vacant first-floor apartment to reduce noise complaints, about their 3-year-old son with autism, from a resident who lived directly below the family.
The family also alleged that the community wouldn't renew its lease—as it had in several previous years—or extend the termination date, forcing the family to move on the same day the mother gave birth to a second child. To settle the dispute, the community had to pay the family $40,000 in damages and agree to other conditions [Sanchez v. Masters Apts. and Princeton Property Mgmt. Co., Inc., HUD No. 08-068, May 2008].
To avoid similar problems, it's a good idea to adopt formal policies and procedures on disability-related transfer requests—or any other requests for an exception to your rules based on disability, advises fair housing trainer Carl York, vice president of Sentinel Real Estate Corp.
The policy may detail your community's procedures for processing requests for reasonable accommodations in any of its rules, policies, practices, or services, when such accommodations may be necessary to afford the disabled individual an equal opportunity to use and enjoy the dwelling. It also may describe the standards for evaluating the request and identify who will make the decision on the request, such as the community's fair housing coordinator, manager, or owner.
Though it's not required under the FHA, having formal procedures will let everyone know what to expect from the process to prevent any misunderstandings. It also shows that your community takes accommodation requests seriously, and helps ensure that requests don't fall through the cracks—a good way to ward off fair housing trouble, since inaction on an accommodation request is often what triggers a discrimination complaint.
And, as HUD notes, having formal procedures will help a housing provider in the event of a later dispute by providing records to show that the accommodation request received proper consideration.
COACH'S TIP: When your community receives a request for a transfer or other exception to your rules as a reasonable accommodation, it's worth the time and effort to consult an attorney for guidance, York says. And although you may not unduly delay your response, explain the process to the applicant or resident, and tell him that you need some time to review the request.
Rule #2: Train Staff on How to Handle Transfer Requests as Reasonable Accommodations
It's essential to review your community's reasonable accommodation policies and procedures with your leasing staff, particularly with managers, says York. They should understand the steps in the process and who is responsible for making a decision on accommodation requests.
Also, you should train your staff on what to do if a resident can't or won't follow your policies or procedures on reasonable accommodations. For example, your policy may include asking residents seeking a transfer as a reasonable accommodation to fill out a standardized form to start the process. Some fair housing experts recommend using a standard form for accommodation requests, but the FHA does not require the request to be made in any particular manner or at any particular time, according to HUD.
The request may be made orally or in writing, and communities must consider reasonable accommodation requests even if the resident does not use your community's preferred forms or procedures for making requests.
That means you must be sure your staff knows what to do if faced with a resident who wants an exception to a rule as a reasonable accommodation without following your established policies. For example, if the resident refuses to fill out your standardized form, you could train staff members to document the request by filling out the form themselves.
Rule #3: Train Staff on How to Recognize Accommodation Requests
Train your leasing staff on what to do when approached by a prospect or a current resident with a request for an exception to any of your community's rules because of a disability, York says. Without training, a staff member may fail to recognize a request for a reasonable accommodation, leading to inaction—and ultimately, a fair housing complaint.
Although the FHA does not require a community to provide a reasonable accommodation unless the applicant or resident asks for one, the law does not require a resident or an applicant to use the words “reasonable accommodation” when making a request for one. The law considers an applicant or a resident to be making a request for a reasonable accommodation anytime she “makes it clear to the housing provider that she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability,” according to HUD. If your staff ignores a request or doesn't take it seriously, your community could find itself in fair housing trouble.
Example: An Ohio community was accused of disability discrimination by a resident who filed a notice that she was going to vacate two weeks after moving in, because of “illness.” She changed her mind, however, after being told that she was responsible for the balance of the rent. She said that she had asked the resident manager to be moved to a larger unit to alleviate her claustrophobia, but that her request was denied without explanation.
The resident claimed that she renewed the request a month later but was told that the move would involve too much paperwork. A few months later, after giving notice that she was having anxiety attacks and that the small unit was causing her to be claustrophobic, she moved out.
The community sued the resident for the balance of the rent and won the first round. On appeal, however, a court reversed, ruling that the community violated fair housing law by failing to provide a reasonable accommodation for the resident's disability. The court acknowledged that her initial notice, that she was moving because of “illness,” was legally insufficient to trigger the community's obligation to provide a reasonable accommodation. After that, however, she made two oral requests to be moved to a larger unit, and tied the request to her disability and illness caused by the size and physical character of her small unit.
The resident claimed that the staff had ignored the first request and denied the second request because it involved too much paperwork. Even though the resident did not put her request in writing until her second notice to vacate the unit, the court ruled that the community had an obligation to consider her oral requests for an accommodation made before that time [Manor Park Apts., LLC v. Garrison, April 2005].
To prevent similar complaints, train your staff to follow your policies and procedures on reasonable accommodations anytime they receive a transfer request that may be related to a disability. The disability-related need for a transfer request may be obvious in some cases, such as when a resident with mobility impairments requests a transfer to a ground-level unit. But it may be difficult to determine the need for the transfer in residents whose disability is not obvious, such as chemical sensitivity or an emotional impairment.
The bottom line: Train your staff not to ignore a transfer request simply because it's unclear whether the request is disability-related.
Rule #4: Assess Whether the Transfer Request Is Related to a Disability
A community is not required to make an exception to a community's rules, policies, or services unless it's necessary for a person with a disability to have an equal opportunity to use and enjoy the dwelling.
The law considers a requested accommodation to be necessary when there is some identifiable relationship between the requested accommodation and the individual's disability, according to HUD guidelines. For example, a resident with a mobility impairment asks for an assigned parking space in a community that does not generally assign parking spaces to residents. Or a resident with a mobility impairment who uses a wheelchair asks for a transfer from an upper-level unit to a ground-floor unit of a building with no elevators.
However, HUD guidelines also state that a housing provider can deny a request for a reasonable accommodation if the request was not made by or on behalf of a person with a disability—or if there was no disability-related need for the accommodation.
Example: A community in Puerto Rico was accused of failing to reasonably accommodate the mental disabilities of a mother and son who asked for transfer to a different unit. After requesting the transfer, the residents said they repeatedly told the staff that they needed the transfer to get away from conflicts with noisy neighbors. The residents said the community was “well aware” of their mental disabilities, but the court disagreed.
Even though the community made changes to the unit to make it more physically accessible to the mother, and knew the son received Social Security disability benefits, that “general awareness” did not transform the residents' request to move to a different unit into a request for a reasonable accommodation. The court said it was the residents'; responsibility to put the community on notice by making a “sufficiently direct and specific request for special accommodations.”
In fact, beyond asserting that the residents needed a quiet unit to protect their mental health, it was never made clear precisely how the transfer request was linked to or made necessary by their disabilities [Colon-Jimenez v. GR Management Corp., March 2007].
COACH'S TIP: In some circumstances, the community may obtain disability-related information from a person requesting a reasonable accommodation to verify that the request is necessary. The community may not request any additional information about the disability and disability-related need for the accommodation if the request comes from a person with an obvious or known disability and the need for the accommodation is readily apparent.
But if the disability is not obvious, the community may request reliable disability-related information to verify that the person meets the FHA's definition of disability. And unless the link between the disability and the requested accommodation is readily apparent, the community may seek information necessary to evaluate whether the requested accommodation is needed because of a disability. Any disability-related information must be kept confidential, unless disclosure is required by law.
Rule #5: Determine Whether the Transfer Request Is Reasonable
A community may deny a request for a reasonable accommodation, according to HUD guidelines, if providing the accommodation is not reasonable—that is, if it would impose an undue financial or administrative burden on the community, or if it would fundamentally alter the nature of the community's operations.
HUD guidelines state that decisions involving the reasonableness of the requested accommodation must be made on a case-by-case basis involving, among other reasons:
The cost of the requested accommodation;
The financial resources of the community;
The benefits that the accommodation would provide to the person requesting it; and
The availability of alternative accommodations that would effectively meet the person's disability-related needs.
Though not required to make a requested accommodation that poses an undue financial burden, a community may not deny a requested accommodation merely because it involves some costs. That would mean, for example, that a community could not deny as unreasonable a disability-related request to transfer to a unit with the same or similar rent, even if it involved some administrative costs.
However, if there is a substantial rent differential and the resident is unwilling or unable to pay the higher rent, the community may be justified in denying the transfer request because it poses an undue financial burden.
Nevertheless, it's best to consult your attorney before rejecting a disability-related request to transfer as a reasonable accommodation, York advises. Since disputes concerning accommodation requests so frequently result in fair housing complaints, your attorney may be able to help you craft an appropriate response to the request.
COACH'S TIP: When the community denies the requested accommodation because it is not reasonable, HUD guidelines state that the community should discuss with the resident alternative accommodations that would meet his disability-related needs and are reasonable. Courts disagree about whether the FHA requires housing providers to negotiate with disabled residents potential alternatives to a requested accommodation.
However, the HUD guidelines state that it is “helpful to all concerned because it often results in an effective accommodation for the requester that does not pose an undue financial and administrative burden on the provider.”
Rule #6: Keep Track of Available Units
Keep updated records of your community's available units to ensure that you respond accurately when asked about the availability of accessible or ground-floor units. Upon receipt of such requests, you have an obligation to look at your inventory and to provide accurate and fair information on what is available, York says.
For example, your staff needs accurate information to respond to a prospect or an applicant with a disability who wants an accessible or ground-floor unit. If the prospect is told that none are available—when in fact, you do have such units available—your community could be accused of disability discrimination for steering the prospect away from the community.
Similarly, your community may receive a request from a current resident to transfer to an accessible or ground-floor unit. Mistakenly telling the resident that no accessible or ground-floor units are available would render you vulnerable to a disability discrimination complaint for failure to provide a reasonable accommodation.
Example: An Illinois community faced a disability discrimination complaint by a third-floor resident who accused the community of misrepresenting the availability of lower-floor units. The resident had to use a wheelchair for a mobility disorder, which made the two-bedroom unit she shared with her daughter virtually inaccessible because there were no elevators in the building. She said that she repeatedly asked to be moved to a two-bedroom unit (to maintain eligibility for housing assistance) on the first floor, but she was told there were none available.
The community said that it provided the resident with accurate information based on the configuration of the building. There were three levels of living space. The resident lived on the top floor, and although there were two-bedroom units on the middle level of living space—the first level above ground—there were none on the lower level—which was six steps below ground.
The community said that the resident did not ask about available two-bedroom units on a “lower level—only those on the “first floor—and the staff accurately told her that there were no two-bedroom units on the first floor of living space—the one below ground.
The court rejected that argument, ruling that the community knew that the resident's reliance on a wheelchair rendered her unit on the top floor virtually inaccessible, but that it failed to offer her any accommodation of an available unit on a lower, more accessible floor. Under those circumstances, the court ruled, the community could be found liable for disability discrimination [Rosenborough v. Cottonwood Apts., August 1996].
COACH'S TIP: If your community maintains a waiting list for accessible units, you need to establish procedures to ensure fairness and consistency in maintaining the list. If, for example, you have a limited supply of accessible units, your community may maintain a separate waiting list for individuals with disabilities. When units become available, they should be filled from the list on a first-come, first-served basis—not based on the severity of the disability.
Rule #7: Don't Impose Special Conditions on Accommodation Requests
The FHA prohibits communities from imposing any special conditions or extra fees as a prerequisite to receiving a reasonable accommodation, according to HUD guidelines.
If a current resident requests a transfer to another unit to accommodate a disability, you may not create any obstacles or discourage him from pursuing the request, according to York. For example, you could trigger a fair housing complaint if you insist that a resident wait until the end of the lease term to make a move, or require the resident to pay additional fees as a condition to allowing the transfer mid-term.
COACH'S TIP: Consult your attorney if you have no units available to accommodate a resident's disability-related transfer request, York recommends. If, for example, a family with children living in a two-bedroom unit asks for a transfer to a three-bedroom unit to accommodate a live-in aide for a disabled member of the household, and you have no suitable units available, ask your attorney whether you should allow them to terminate the lease as a reasonable accommodation.
Rule #8: Keep Good Records on Reasonable Accommodation Requests
It's important to document your community's efforts to respond properly to disability-related requests for transfers or other types of accommodations, particularly if a dispute leads to a fair housing complaint. According to HUD's most recent report, failure to make reasonable accommodations accounted for 21 percent of housing discrimination complaints filed last year.
Although there is no requirement to keep a master file, York says that communities may ensure consistency by having procedures prepared to track requests for reasonable accommodations and to document how they were resolved.
The documents will enable you to respond to a complaint filed by the resident by showing that you complied with fair housing requirements in evaluating and responding to his request. The documents also will help to ensure consistency—which is essential anytime you make an exception to any of your community's policies, practices, and procedures—to prevent others from accusing you of discrimination if you don't grant them a similar exception.
Fair Housing Act: 42 USC §3601 et seq.
HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf
Carl York: Vice President, Sentinel Real Estate Corp.; 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.
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|November 2008 Coach's Quiz|