Legal & Planning

What You Need To Know About Housing Discrimination

Many people with a disability, or those supporting a family member with a disability already know the financial struggle.  Add on to that the difficulty in meeting basic needs like housing and you have a recipe for disaster.

Housing challenges for individuals with disabilities

People with disabilities face obstacles like discrimination, few opportunities for accessible living and housing prices that out-pace costs of living and benefit payments.  There is an incredible need for affordable, accessible and appropriate housing for people with disabilities to truly embrace an inclusive community.

This article outlines the basic elements for establishing discrimination and describes how one can go about filing a discrimination claim.

What Is The Rehabilitation Act?

The disability rights movement had its first major achievement with the enactment of the Rehabilitation Act.  The Rehabilitation Act prohibits discrimination based on disability in Federal programs, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors and subcontractors. Section 504 of the Rehabilitation Act extends civil rights to people with disabilities and provides opportunities for people with disabilities in education, employment and various other settings.  Each Federal agency has its own set of section 504 regulations that apply to its own programs. Agencies that provide financial assistance also have section 504 regulations covering entities that receive Federal aid.  Each agency is responsible for enforcing its own regulations; however, section 504 may also be enforced through private lawsuits.

Housing and the Rehabilitation Act

The Department of Housing and Urban Development’s (HUD) section 504 regulations under the Rehabilitation Act made it unlawful under the Fair Housing Act (FHA) to discriminate in any aspect of housing provision or to deny a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence.  The FHA also requires landlords to make reasonable accommodations in their policies and operations to afford people with disabilities equal housing opportunities.

Step 1: Is the Home Covered by the Act?

The Fair Housing Act covers most housing.  Generally, any person may be held liable under the FHA unless they fall within an exception to the Act’s coverage.  In some circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family housing sold or rented without a broker, and housing operated by organizations and private clubs that limit occupancy to members.

Step 2: Do I (or Does My Loved One) Have a Disability Based on the Act?

The ADAAA (ADA Ammendments Act) has a three-prong structure for the definition of disability that is also used in the Rehabilitation Act and the FHA.  Disability, with respect to an individual, means:

1. A physical or mental impairment that substantially limits one or more major life activities of such individual.
2. A record of such an impairment; or
3. Being regarded as having such an impairment.

A housing provider may not inquire as to the nature or severity of the disability unless it is necessary to respond to a reasonable accommodation request and only to the extent needed to verify the person’s status as having a disability and to determine the necessity of the reasonable accommodation.

Step 3: Was the Conduct Prohibited?

Once you have shown that you or a loved one has a covered disability, you next need to show that the conduct was prohibited.  The FHA prohibits housing providers from discriminating against applicants or residents because of their disability or the disability of anyone associated with them.  Discrimination can occur in any aspect of the housing process including the decision to rent or sell a property, the terms of that rental or sale, and whether any modifications can be made to the structure or policies.

Refusal to rent or sell

With respect to buying, selling, and renting a property, the FHA makes it illegal to refuse to rent or sell to a person because of a disability or to impose different application or qualifications, increase rental fees or prices, or other terms and conditions based on the person’s disability status.

Modifying the property

The FHA also prohibits housing providers from refusing to allow (at the expense of the person with a disability) reasonable modifications to the property (including common areas).  With respect to a rental, the landlord can require that the person with a disability restore the property to its original condition (without the modifications) upon vacating and at the tenant’s expense.

What is a reasonable Modification?

A reasonable modification is a structural change made to the existing premises, and can interior and exterior aspects of the property include common or public areas.  A request can be made at any time.  However, there must be an identifiable relationship between the requested modification and the person’s disability.  The request must also be “reasonable.” Some examples include widening doorways to allow wheelchair access, installing grab bars in bathrooms, lowering kitchen cabinets to a suitable height, removing carpeting to make it easier for wheelchair or mobility devices to maneuver, or adding a wheelchair accessible ramp. Reasonable accommodation also applies to policies or services.  For example, waiving a “no pet” policy to allow for a service dog, or requesting a disability-accessible parking space close to one’s residence.

Who pays for the modifications?

The tenant or homeowner is responsible for the costs of making these modifications as well as the cost of restoring the property upon moving out.  The exception to this is with respect to housing that receives federal financial assistance.  In that case, structural changes must be paid for by the housing provider unless providing them would be an undue financial or administrative burden. Multi-family dwellings built after 1991 generally must have been constructed to meet certain minimum accessibility standards.  If these minimum standards are requested by a person with a disability, the housing provider may be liable for the cost of providing the accommodation.  However, if the request is not a structural change that should have been part of the minimum standards, the tenant is responsible for paying for the costs of the changes.  For multi-family housing built prior to 1991, the tenant can request reasonable accommodations but he or she must pay for them, even if they are now considered minimum standards. The housing provider cannot require an additional security deposit or insurance coverage for the modification.  However, the landlord may negotiate a restoration agreement that requires a tenant to make payments into an interest-bearing escrow account (with interest accruing to the benefit of the tenant) to ensure there are funds available to pay for restoration at the end of the tenancy.  However, the decision to require an escrow account cannot just be based on the fact that the person has a disability.  Rather, the decision must look at factors like the nature of the modifications, the duration of the lease, and the credit history of the person.

Denial of Accommodation

To show that a request for a reasonable accommodation or modification was denied, you must show that the housing provider clearly understood that the request was being made for purposes of disability accommodation.  This should include letting the housing provider know you have a disability, you are requesting an accommodation, the type of accommodation you are seeking, and the relationship between the disability and the requested accommodation.  As a good practice, requests should be made in writing.

Step 4: Filing a Housing Discrimination Claim

People who feel they have been discriminated against with respect to housing can file a claim with their regional HUD office (http://portal.hud.gov/hudportal/HUD?src=/topics/housing_discrimination).  The complaint must be filed with HUD within one year after the alleged discrimination. Once a claim is submitted, it will be reviewed by a fair housing specialist to see if discrimination occurred.  If you suspect you or a loved one has been discriminated against, you should document dates and times and any witnesses to conversations and provide these to HUD.  You should also keep all copies of documents, and document telephone calls. Once the housing specialist has reviewed the claim, he or she will determine whether or not discrimination has occurred.  If discrimination has occurred, the Housing Specialist will help file a formal complaint with HUD.  If the housing specialist has found no discrimination, you may still be able to pursue your claim through the federal court system.  At any point, you may want to consult with an attorney experienced in housing discrimination litigation. The person may also file a claim in federal district court within two years from the date of discrimination.  However, if the complaint is filed with HUD, it will be investigated at no cost to the person with a disability. To learn more about housing discrimination or filing a claim, please visit HUD’s website at: http://portal.hud.gov/hudportal/HUD?src=/topics/information_for_disabled_persons