Reasonable Accommodations & Modifications: What's 'Reasonable'?
In this lesson, the Coach reviews the requirement under fair housing law to grant reasonable accommodations and modifications for individuals with disabilities.
Disputes over requests for disability-related accommodations and modifications remain at the top of the fair housing complaint process, says fair housing attorney Robin Hein. Often, it boils down to clashing opinions over the reasonableness of the request. The resident believes his request is perfectly reasonable, since it’s what he thinks would best meet his disability-related needs. But you may have a different opinion—maybe because you wonder whether it’s really needed or it’s worth the disruption or expense it entails.
When people dig in their heels about the reasonableness of the request, disputes often end up in fair housing complaints—or in court. Once that happens, it’s difficult to predict the outcome, since it’ll be up to an outside party—an investigator or judge—to assess all the facts and circumstances involved, who’s more believable, and who can back it up with proof. Even if you win, you can face hefty legal expenses, not to mention the drain on your time and attention.
To avoid problems like these, fair housing experts say it’s best to attempt to negotiate a workable solution that will meet the resident’s disability-related needs without breaking the bank. Even if it doesn’t resolve the dispute, you’ll have proof that you tried to reach a solution, which will go a long way if you’re called to defend your actions in court.
In this month’s lesson, we’ll review the fair housing protections based on disability, including reasonable accommodation and modification requests. And we’ll suggest six rules for what to do—and what not to do—when you get what you think is an unreasonable request. Finally, you can take the Coach’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bans housing discrimination based on disability, so it’s unlawful to deny housing to individuals on the basis of their disabilities or to discriminate against them in the terms, conditions, and privileges of the tenancy.
But there’s more to it than that, since the law requires communities to grant requests for reasonable accommodations and reasonable modifications when necessary to enable an individual with a disability to fully use and enjoy her home. Accommodations are changes or exceptions to rules, policies, practices, or services. Modifications are structural changes to interiors and exteriors of units and to common and public use areas.
But there are limits to these obligations. For one thing, such requests must be made by or on behalf of an individual with a disability—that is, a physical or mental impairment that substantially limits one or more major life activities. For another, the requested accommodation or modification must be “necessary,” which means that there must be an identifiable connection between the individual’s disability and the requested accommodation or modification.
Furthermore, the requested accommodation or modification must be “reasonable." When dealing with the reasonableness of a requested modification, cost usually isn’t at issue, since it’s generally up to the resident, not the community, to pay for reasonable modifications. But it still involves a balancing act—weighing the burden that the requested modification would impose on the community against the benefits to be gained by the resident.
Most commonly, you’ll be dealing with requests for reasonable accommodations. According to federal guidelines, requests for accommodations may be denied if providing the accommodation is not reasonable—that is, it would impose an undue financial and administrative burden on the community or it fundamentally alter the nature of the community’s operations.
To determine whether the requested accommodation imposes an undue financial and administrative burden, you’ll have to review—on a case-by-case basis—various factors, including the cost of the accommodation, the financial resources of the community, the benefits that the accommodation would provide, and the availability of alternatives that would effectively meet the resident’s disability-related needs, according to the guidelines.
The law also considers accommodation requests to be unreasonable when they fundamentally alter the essential nature of the community’s operations. As an example, the guidelines state that a community would not be required to grant a request from a resident with a mobility impairment to take him to the store and help him shop for groceries. If the community does not provide transportation or shopping services for its residents, then granting the request would require a fundamental change in the nature of the community’s operations.
Fair housing experts advise against flatly denying accommodation requests—even when you believe they’re unreasonable. That’s because the federal guidelines call on housing providers to engage in an “interactive process”—discussions about the disability-related need for the requested accommodation and possible alternative accommodations-—because it often leads to an effective accommodation that doesn’t unduly burden the community.
As Hein explains it, HUD wants management to talk to the applicant or resident about what it is he or she needs. If you can't talk to the resident or are worried about saying it correctly, then it’s important to let the resident know, in writing or through an interpreter or legal advisor, management's position on the request, pose a possible alternative that’s reasonable under the circumstances, and ask him for feedback on whether that alternative will work.
Hein warns against taking a hard line—insisting that rules are rules and that the resident must abide by them or face the consequences. Management must listen to what the resident wants and how the requested accommodation or modification will assist with overcoming his disability to allow him the full use and enjoyment of living in the rental home. It may not come easy, but HUD wants management to work with the resident to reach some kind of compromise on this issue, he says.
Example: In September 2014, a community persuaded a New York judge that it offered workable alternatives to unreasonable requests from disabled residents related to its planned elevator renovation. The residents, who lived on upper floors, had significant health problems, which made going up and down stairs very difficult. When they learned that the building’s only elevator would be shut down for months during renovations, the residents sued the community for unlawfully denying their accommodation requests and asked for a court order to prevent the elevator shutdown.
Attempts to negotiate a reasonable accommodation were unsuccessful. The community offered to move the residents to either a unit of their choice on the first floor or a larger unit in a building less than a mile away, at no additional cost. The community also promised that the temporary move wouldn’t affect the rent-stabilized status of their present units.
The residents wanted to stay in their units. Among other things, they wanted the community pay for a “para-transport service” to come to their units once a week and carry them up and down the stairs in a wheelchair or other specialized chair; the estimated cost of each round-trip was $525 per person.
After a hearing, the court refused to issue the court order, ruling that the community’s offer to move the tenant with the a mobility impairment to the first-floor unit in the same building was reasonable. The community showed that his preferred accommodation would cause undue hardship because of the risk of injury—and significant liability—if there were an accident while carrying him up and down the stairs.
The same was true for the other resident. It was difficult for him to leave his unit due to Alzheimer’s disease, but the community offered him a two-bedroom unit to accommodate his live-in aide. Although courts generally defer to the resident’s view of his own needs in determining what is a reasonable accommodation, the court said that having him carried up and downstairs was simply not a viable option because it presented too great a hardship to the community. Based on the possibility of injury to the resident or the people carrying him, along with the significant cost of the service, the court didn’t think his requested accommodation was reasonable [Picaro v. Pelham 1135 LLC, September 2014].
6 RULES FOR HANDLING
REASONABLE ACCOMMODATION AND MODIFICATION REQUESTS
Rule #1: Don’t ‘Just Say No’
When an applicant or resident asks for an exception to your rules or policies, your first impulse may be to just say no. You may be skeptical of requests for special treatment for fear of opening the floodgates to other residents wanting the same thing. Or the circumstances may make you suspicious, particularly if the resident doesn’t appear to be disabled or makes what you believe to be an unwarranted or costly request. Or the timing may be off if, for example, the request comes only after the resident is caught breaking the rules.
But, as Hein warns, you should NOT outright reject any disability accommodation or modification request just because it’s against the owner or management's rental policy or would cost the owner money out of pocket (or break the budget). ALL disability accommodation and modification requests MUST be evaluated on a case-by-case basis.
Whatever you think of the validity of the request, it’s important to take it seriously. Follow standard procedures, get more information if necessary, evaluate the request, and document what you do. It’ll be well worth the effort if it later comes under scrutiny by enforcement officials or a judge.
Rule #2: Find Out What the Resident Wants
Listen carefully whenever anyone says she wants or needs something special because of a disability. Even a verbal request or mention of something needed is sufficient to require that management take some kind of action, says Hein.
That’s because the law doesn’t require requests for reasonable accommodation to made in a particular manner or at a particular time, according to federal guidelines. Under the FHA, a resident or applicant makes a reasonable accommodation request whenever 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. The person making the request doesn’t have to mention fair housing law or use the words “reasonable accommodation.”
Communities can—but don’t have to—adopt formal procedures for reasonable accommodation requests, according to the guidelines. It can be helpful not only to prevent misunderstandings about the nature of the request, but also to provide records to show that the request received proper consideration in the event of later disputes. You can ask the resident to put the request in writing, but you can’t deny or ignore a request simply because the resident makes the request verbally or won’t use your preferred forms or procedures for making such requests.
Get more information, if needed, to determine whether the requested accommodation may be necessary because of a disability. If the disability is not apparent, you may ask how the proposed accommodation or modification is related to assisting and coping with the disability, Hein says. Don’t ask overly intrusive, detailed, or invasive questions or insist that only a medical doctor provide an explanation as to why the accommodation or modification is needed. And don’t ask questions about the extent of the disability if it’s apparent or obvious, he warns.
Rule #3: Determine Whether Requested Accommodation Imposes Undue Burden
You don’t have to grant unreasonable accommodation or modification requests, but you can’t rely on your subjective beliefs or go by what you’ve done in the past to decide whether a particular request is unreasonable. Instead, you have to look at all the facts and circumstances and consider whether the request meets the legal standards for being unreasonable—that is, imposes an undue financial and administrative burden or fundamentally alters the nature of the community’s operations.
A requested accommodation isn’t unreasonable simply because it requires the community to pay some costs, such as repainting lines or providing signage to designate an assigned, handicapped parking space. On the other hand, communities may deny requests as unreasonable when providing the requested accommodation would be so costly that it imposes an undue financial and administrative burden on the community.
Example: Last year, a court ruled that a Florida community did not violate fair housing law by refusing a resident’s request to keep personal appliances in his unit. The resident lived in a high-rise building, which had been sold and renovated. After being told that residents could no longer operate large personal appliances in their units, the resident asked to keep his air conditioner, washing machine, and dryer as a reasonable accommodation for his disabilities. He sued when the community denied his request, but the court dismissed the case.
On appeal, the court affirmed, ruling that the resident’s request was unreasonable because it imposed an undue financial and administrative burden on the community. In connection with his request, the community hired an architectural expert to explore the feasibility of accommodating personal appliances in the building. The expert stated that the electrical panels servicing the building were already operating at near-maximum capacity and could not accept the additional load of an air-conditioner or washer and dryer. The expert also said that upgrading the electrical panels to increase their capacity would be prohibitively expensive [Fisher v. SP One, Ltd., March 2014].
Rule #4: Determine Whether Requested Accommodation Fundamentally Alters Your Operations
The law considers requests for accommodations to be unreasonable when they fundamentally alter the community’s operations. When the resident wants something that’s so far outside your normal operations or amounts to a violation of law, the request may be denied as unreasonable.
Example: Late last year, a court ruled that a federally assisted housing community in Michigan did not have to allow use of medical marijuana as a reasonable accommodation under fair housing law.
A few months after the resident moved in, the management company sued to evict her for violating lease provisions banning drug-related or criminal activity. The resident, who was disabled, had a state-issued medical marijuana card. She argued that she was entitled to a reasonable accommodation for use of medical marijuana since it was legal under state law.
The court disagreed. Although state law allowed medical marijuana use, it was trumped by federal law, which classified marijuana as an illegal drug with no medically acceptable uses. Requiring the community to grant the reasonable accommodation to use marijuana would force the community to violate federal law and fundamentally alter the nature of its operations by thwarting its mission to provide drug-free federally assisted housing [Forest City Residential Management Inc. v. Beasley, December 2014].
Rule #5: Consider Alternatives If Request Is Unreasonable
If the requested accommodation is unreasonable, federal guidelines say that communities should engage in an “interactive process” with the resident to discuss whether there’s a reasonable alterative accommodation that would effectively address the resident’s disability needs.
Some courts have ruled that it’s not required under fair housing law, dismissing claims against communities for failing to engage in the interactive process. Nevertheless, Hein says, it’s better to offer an alternative to show that you attempted reach a compromise by balancing the resident’s disability-related needs with the needs of the community. In effect, it shows that you’ve offered to give the resident something to address his disability-related needs—even if it’s not exactly what he requested in the first place.
Example: In April 2015, the court dismissed a fair housing claim filed by an Oregon resident who wanted to submit photos in lieu of the required annual inspection of her unit in a federally assisted community.
The resident received Section 8 housing assistance, which required an annual inspection of her unit. After living there several years, she asked for a two-month delay for the next annual inspection as a reasonable accommodation. Her request was granted—as were additional requests to put it off longer.
When the unit was inspected, the unit failed because of significant paper, magazines, and other clutter in the bedroom, which was a trip hazard and blocked access to the window. The reinspection was scheduled a month later, but it was delayed again at her request.
As the deadline approached, the resident asked to submit photos of the unit in lieu of a physical inspection as a reasonable accommodation. The program administrator denied her request, but offered to send a different inspector and, to make it brief, inspect only the items that failed the prior inspection.
After denying consent for the inspection, the resident sued the administrator, the community, and others for denying her a reasonable accommodation and refusing to engage in an interactive process to resolve her accommodation requests.
The court dismissed the case, ruling that her requested accommodation was unreasonable because, if granted, it would violate federal regulations requiring annual in-person inspections. Allowing residents to conduct their own inspections by submitting photos would fundamentally alter the program and potentially endanger the health and safety of the tenant being inspected and other residents.
The court also rejected her claim that the administrator violated fair housing law by refusing to engage in the “mandatory” interactive process. Although employers are required to engage in an interactive process when denying reasonable accommodation requests by employees, there’s no similar requirement when it comes to housing and landlord-tenant regulations.
Even if it were required, the administrator engaged in the interactive process by granting numerous extensions for inspections and reinspections over several months. It also offered to have a different inspector conduct the inspection without the presence of property management personnel. The fact that it wouldn’t grant one of her requests—to take photos instead of having the physical inspection—didn’t prove that the administrator failed to adequately to engage in an interactive process regarding her requested accommodations [Doe v. Housing Authority of Portland, February 2015].
Rule #6: Watch Out for Potential Retaliation Claims
Watch how you treat residents after they’ve made a reasonable accommodation request. The law bans retaliation against anyone engaged in a protected activity, including filing a discrimination claim or making a request for a reasonable accommodation or modification. Retaliation is a separate violation of fair housing law, so it’s unlawful to retaliate against someone simply for making a disability-related request—even if she isn’t legally entitled to receive the requested accommodation or modification.
Be mindful of potential retaliation claims when pursuing eviction proceedings against residents for violating the lease or breaking the rules. They may try to derail or delay the eviction proceedings by accusing the community of unlawfully denying their requests to overlook the violation as a reasonable accommodation—and tack on a retaliation claim to call the community’s motives into question. You don’t have to tolerate a resident’s bad behavior, as long as you can prove that you had legitimate, nondiscriminatory reasons for taking action against him—which have nothing to do with his disability-related requests.
Example: In January 2015, a court ruled that a Florida resident’s request for a landlord to pay for valet parking in the ground-floor garage was unreasonable. The community leased the ground floor of its garage to a valet parking service. Residents could park on the ground level if they paid the hourly valet rate; otherwise, they could park on the upper floors by paying a monthly flat fee.
The resident was disabled and lived in a ground-floor unit. When the community sued to evict him for nonpayment of rent, he sued the community for denying his request for an assigned, handicapped parking space on the ground level of the garage. The resident also asked for a court order to prevent the community from evicting him, claiming it was in retaliation for his accommodation request. Eventually, the eviction case was settled when the resident agreed to move out, and the court dismissed his fair housing claims.
On appeal, the court affirmed, ruling that the resident’s request for an assigned, handicapped parking space on the ground level of the garage was not a reasonable accommodation. The ground level of the garage was leased to the valet service and residents couldn’t park there unless they were willing to pay the hourly valet rate—something the resident was unwilling to do. Because all residents could park on levels two through seven, providing this resident with a ground-level parking space at no cost or reduced rate would place him in a better position than all other residents, disabled and nondisabled alike. Requiring the community to either break its lease with the valet service or pay the hourly valet parking fees so the resident could park on the ground floor was unreasonable because it would place an undue financial burden on the community.
The resident’s retaliation claims were properly dismissed. He claimed he was evicted because of his request for the parking space, but the record showed that the eviction action was triggered by his failure to pay rent. Furthermore his request for the parking space wasn’t a protected activity because his accommodation request was objectively unreasonable [Philippeaux v. Apartment Investment and Management Co., January 2015].
- Fair Housing Act: 42 USC §3601 et seq.
Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood & Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.
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|May 2015 Coach's Quiz|