A disability is defined in the Fair Housing Act as a physical or mental impairment that substantially limits one or more of a person’s “major life activities.” Major life activities can include caring for one’s self, walking, seeing, hearing, speaking, breathing, learning, and working. The definition of disability under the Fair Housing Act also includes people who have a history of an impairment and people who are perceived as having an impairment (even if they are not actually disabled).
Disabilities may include mental or emotional illness, difficulties associated with aging, HIV/ AIDS, and those recovering from alcoholism or drug addiction (individuals who are currently using illegal drugs are not protected).
A reasonable accommodation is a change in rules, policies, practices, or services that enables a person with a disability an equal opportunity to use and enjoy a dwelling. A person with a disability must notify the housing provider if they need a reasonable accommodation and the housing provider must grant the request if it is reasonable. There must be a connection between the disability and the need for the accommodation. Typically, accommodations will be a matter of negotiating what will serve both the housing provider and the disabled person best.
Examples of reasonable accommodations include:
A reasonable modification is a change in the physical structure of a dwelling that enables a person with a disability an equal opportunity to use and enjoy that dwelling. In many cases, individualized modifications to a dwelling enable a person with a disability to live in a space that they would otherwise be physically unable to live in. This includes the interior and exterior of a building or a unit, including public and common-use areas.
Examples of reasonable modifications include:
Normally the expense of reasonable modifications is the responsibility of the tenant unless the housing is federally subsidized (such as a Public Housing Authority). Federally funded housing projects may be required to pay for reasonable modifications requested by a disabled tenant.
Private housing providers can require that the tenant use a certified contractor to do the work and can require that the tenant restore the dwelling to its original condition upon moving out of the unit if the modification will interfere with the next tenant’s use and enjoyment of the premises. For example, if a tenant has a ramp to the laundry room built in a multi-unit apartment complex, the ramp does not need to be removed because it is located in a common use area and may be beneficial to future tenants. However, if cabinets in a tenant’s kitchen are moved lower to provide more mobility to a wheelchair user, the cabinets may have to be returned to their original height.
If restorations to the dwelling will be necessary when a tenant moves out, a housing provider may request payment by the tenant into an interest-bearing escrow account. Such payments may be made over a reasonable period and the amount must be reasonable and cannot exceed the cost of the restorations. The interest from the account accrues to the benefit of the tenant. If you do need to make extensive modifications to a rental unit, consider negotiating a longer lease with the landlord.
When must a housing provider grant a reasonable accommodation or modification request?
A housing provider must grant a request for a reasonable accommodation or reasonable modification if:
A housing provider may not stall or delay in responding to a request for reasonable accommodation or reasonable modification.
What is Reasonable?
A request for an accommodation or modification is considered reasonable if that request:
Example 1: It would be unreasonable for a person with a disability to ask that their landlord assist them with their meals, unless the housing provider was already in the business of providing meal support (such as in an assisted living facility).
Example 2: If a person becomes disabled and can no longer access their 3rd floor apartment in a non-elevator building, it would be unreasonable (and probably architecturally impossible) to request the landlord allow the tenant to build an elevator. A more reasonable request would be to request a transfer to a first floor apartment. If that is not possible, the tenant could negotiate with the landlord for an early release from the lease.
If the accommodation or modification proposed by a tenant is unreasonable, the housing provider must engage in an interactive dialogue to determine if there is another solution that will meet the tenant’s needs.