Ms. Penfield heard voices. They were inside the walls of her apartment. She tried her best to get rid of them. She threw water on the walls and hit the walls where the voices were coming from with a broomstick. But it did no good. The voices kept returning. So, more water and more attacks with a broomstick were needed. It still didn’t work, so she resorted to other objects, such as chairs. The apartment management company didn’t hear the voices, but they saw the damage to the walls. They wanted to evict Ms. Penfield.
Ms. Penfield’s lawyer claimed at the eviction hearing that she was disabled because she had auditory hallucinations. He asked that the case be dismissed and that the management company, Citywide Associates, provide “reasonable accommodation” to Ms. Penfield. While this conduct would likely justify eviction of a tenant without a disability, the court noted that the Fair Housing Act requires that a landlord make a reasonable accommodation if such an accommodation would alleviate the destructive conduct.
The reasonable accommodation ended up being that Ms. Penfield was supplied with a nerf bat to use on the walls instead of a broomstick; and she got to stay in her apartment, since there was no evidence that other tenants were affected by her conduct.
Then there was the question of damages. With a non-disabled tenant the wall damage would have been sufficient to require him or her to either pay for the damage or move out and have it deducted from the security deposit. Not so with Ms. Penfield. She was disabled and the court ruled that the landlord had to eat the $520 it cost to repair the damage to the wall. (Citywide Associates v. Penfield, 409 Mass. Super. Ct 140)
The “Reasonable Accommodation” Pitfall “Reasonable Accommodation” is probably the most Byzantine and convoluted section of the Fair Housing Act. Nothing is as it appears on the surface.
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 is the case of Ms. Penfield.
Preferential Treatment
Another example is 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 has earned the 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 wheelchair.
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.
Even though Ms. 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 “accidents.”
Ms. 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. Ms. Shapiro’s attorney wrote the board asking for reasonable accommodation and an immediate spot for Ms. Shapiro. The board replied that she’d get “reasonably accommodated” when her name came to the top of the list.
Ms. Shapiro filed a Fair Housing complaint. After its investigation, HUD found evidence of discrimination and filed a charge against Cadman Towers. Ms. Shapiro sued and asked the court to immediately order the complex to give her a parking spot, 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 Ms. Shapiro could use and enjoy her apartment. “Reasonable accommodations” could include reserving parking spaces for mobility-impaired tenants as a “modest” adjustment to accommodate them. (Ms. Shapiro v. Cadman Towers, 51 F.3d 328 (New York) 1995.)
How They Get It
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 is a mentally disabled person who was creating a disturbance for other residents. Ms. Penfield was creating no disturbance, only doing damage. Normally, you would serve such a person with a seven-day, ten-day or 14-day notice (depending on your state) to behave or move. If he or she didn’t change his or her behavior, you would evict the tenant.
What would happen is that you serve the notice to comply with the rental agreement and the tenant takes the notice to his or her psychiatrist who refers the tenant 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. (See the sample “Request for an Accommodation of Housing Policy” form.)
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.
Can They Do It Forever?
No, you don’t have to tolerate it forever and you don’t have to tolerate it if the tenant won’t make a “reasonable” attempt to stop the behavior.
James X, a tenant at the Shady Oaks apartment complex, is arrested for threatening his neighbor while brandishing a baseball bat. The Shady Oaks’ lease agreement contains a term prohibiting tenants from threatening violence against other residents. Shady Oaks’ rental manager investigates the incident and learns that James X threatened the other resident with physical violence and had to be physically restrained by other neighbors to keep him from acting on his threat. Following Shady Oaks’ standard practice of strictly enforcing its “no threats” policy, the Shady Oaks rental manager issues James X a 30-day notice to quit, the first step in the eviction process.
James X’s attorney contacts Shady Oaks’ rental manager and explains that James X has a psychiatric disability that causes him to be physically violent when he stops taking his prescribed medication. Suggesting that his client will not pose a direct threat to others if proper safeguards are taken, the attorney requests that the rental manager grant James X an exception to the “no threats” policy as a reasonable accommodation based on James X’s disability. The Shady Oaks rental manager need only grant the reasonable accommodation if James X’s attorney can provide satisfactory assurance that James X will receive appropriate counseling and periodic medication monitoring so that he will no longer pose a direct threat during his tenancy.
After consulting with James X, the attorney responds that James X is unwilling to receive counseling or submit to any type of periodic monitoring to ensure that he takes his prescribed medication. The rental manager may go forward with the eviction proceeding, since James X continues to pose a direct threat to the health or safety of other residents.
Who is considered disabled?
1. Individuals with a physical impairment or mental impairment that substantially limits one of more major life activities.
2. Individuals who are regarded as having such an impairment.
3. Individuals with a record of such an impairment.
The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance), and alcoholism.
The term “substantially limits” suggests that the limitation is “significant” or “to a large degree.”
The term “major life activity” means those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning and speaking. The Supreme Court has questioned, but not yet ruled, on whether “working” is to be considered a major life activity.
—US Department of Justice & US Department of Housing and Urban Development, May 17, 2004
Watch the Traps
We need to be careful with situations such as this. Document everything. We may not exclude or evict an individual based on fear, speculation, or stereotype about a particular disability or people with disabilities in general. We must rely on an assessment of that individual based on reliable objective evidence. The assessment needs to consider:
• The nature, duration, and severity of the risk of injury
• The probability that injury will actually occur, and
• Whether there are any reasonable accommodations that will eliminate the
direct threat.
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 for attorneys.)
When You Don’t Have to Make Changes
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.
As a result of a disability, Mary Y is physically unable to open the dumpster placed in the parking lot by her landlord. The tenant requests that the housing landlord send a maintenance staff person to her apartment daily to collect the trash and take it to the dumpster. The housing development is a small operation with limited financial resources and the maintenance man works only twice per week. It may be an undue financial and administrative burden for the landlord to provide a daily trash pick-up service. The requested accommodation may not be reasonable.
If the landlord decides daily trash service is unreasonable, he or she should discuss with Mary whether reasonable accommodations could be provided to meet her disability-related needs. One solution could be placing an open trash collection can in a location that is readily accessible Mary so she can dispose of her own trash and the landlord’s maintenance man can then transfer the trash to the dumpster when he works. Such an accommodation would not involve a fundamental alteration of the landlord’s operations and would involve little financial and administrative burden for the landlord while accommodating the tenant’s disability-related needs.
A landlord is entitled to obtain information that is necessary to evaluate if a requested reasonable accommodation may be necessary because of a disability. If a person’s disability is obvious, or otherwise known to the landlord, and if the need for the requested accommodation is also readily apparent or known, then the landlord may not request any additional information about the tenant’s disability or the disability-related need for the accommodation.
If the tenant’s disability is known or readily apparent to the landlord, but the need for the accommodation is not readily apparent or known, the landlord may request only information that is necessary to evaluate the disability-related need for the accommodation. In other words there has to be a direct connection between the disability and the requested accommodation.
Joe Z. is deaf. As a result of his hearing loss he requests that the landlord provide him “reasonable accommodation” assigning him a parking place in front of his apartment. Other than the hearing loss, Joe is physically fit. Since there is no direct connection between Joe’s disability and his request, the landlord can tell Joe to walk a little farther.
Conclusion
As I pointed out earlier, nothing is as it appears on the surface with “reasonable accommodation.” Most disabled people make excellent tenants, just as most non- disabled people do. We make a good return on our investment by renting to and keeping good tenants. If we can do some small thing to make the lives of a disabled tenant a little easier, it behooves us to do just that.
Just watch your back.
