The Fair Housing Act has very specific rules you need to follow to make sure you do not violate the housing rights of the disabled.
1. Can You Deny Housing Because of a Disability?
No. Denying housing or imposing different housing terms, such as different qualifications or fees for a person based solely on their disability would be a violation of the fair housing rights for the disabled.
2. Who Is Considered Disabled?
Fair housing defines the disabled as those with a mental or physical disability that restricts one or more major life activities.
Major life activities include: seeing, hearing, walking, talking, breathing, communicating, learning, performing manual tasks, caring for oneself and controlling major bodily functions.Disabilities include:
- mobility and visual impairments
- hearing and speech impairments
- cerebral palsy
- chronic alcoholism
- chronic mental illness
- mental retardation
- drug addiction (not including addiction to illegal substances)
3. Is Denying Housing Based on Qualifying Standards a Violation of Fair Housing Rights for the Disabled?
No. You can deny housing to individuals who happen to have a disability if the denial is based on the same qualifying standards you have for all tenants, such as the ability to pay rent on time.
4. Can You Deny Housing to Dangerous Individuals With a Disability?
Yes. You can deny housing to individuals who are a threat to the health and safety of others or who currently use illegal drugs.
The threat cannot just be an assumed threat on your part. It has to be based on evidence, such as current conduct or a recent history of problematic conduct.
5. Who Is Exempt From Following Fair Housing Rights for the Disabled?
The Fair Housing rules for the disabled apply to most public and private housing. Certain exceptions can be made for single-family homes that are sold or rented without using a broker, owner-occupied buildings with four or fewer units and housing for members-only clubs and organizations. However, these groups are still required to adhere to fair housing practices when advertising their dwelling.
6. Do You Have to Make "Reasonable Accommodations" for Those With Disabilities?
Yes. You must make reasonable accommodations for those with disabilities.
According to HUD, reasonable accommodations are defined as, “changes, adjustments or exceptions to common rules, policies, practices or services that would allow the disabled individual an equal opportunity to enjoy the dwelling”.
A request for reasonable accommodation can be made at any point of the housing process including the application process, during tenancy and even during eviction.
There must be a direct correlation between the request and the disability.
- For example:
- Regardless of what your pet policy says, you must allow a guide dog for a blind man. The reasoning for this is that service dogs are not considered pets. They are considered a necessity for the function and safety of the tenant.
7. Can You Ever Deny a Request for "Reasonable Accommodation"?
Yes. You can deny the request if
- it is not made by, or on behalf of, the individual with the disability.
- the request does not have a direct correlation to their disability.
- accommodating the request will put an undue financial or administrative burden on you or fundamentally change your operations.
However, you need to talk to the tenant to see if there is a similar request that could assist them that would not place a burden on you.
8. Do You Have to Allow Tenants to Make “Reasonable Accommodations” to Existing Units?Yes. This is done at the tenant’s expense to ensure their full use and enjoyment of the housing.
- For example:
- installing a ramp going into the building
- installing a lower peephole in the door
- installing grab bars in the bathroom
- mandate that the changes be done according to building code.
- require money to be put into escrow if the modification is expensive, so that money is available to restore the unit to its previous condition.
- require that the unit be restored to its original condition at the tenant’s expense, if the accommodation will interfere with the next tenant’s ability to use it.
- For example:
- a doorway that has been widened does not need to be fixed because it will not interfere with the next tenant’s quality of life.
- a bathroom cabinet that has been removed for better wheelchair access needs be replaced upon move out, because it would interfere with the next tenant’s ability to properly enjoy the unit.
9. What Questions Can You Ask?
It is usually illegal to ask a prospective tenant if they have a disability or the extent of the disability.
Certain exceptions exist:
- If the questions are asked of all individuals who apply to rent in the property, you can:
- inquire about their ability to meet tenancy requirements (such as paying rent on time).
- ask if the applicant is a current user of illegal substances.
- If the property is only available to those with a disability or if priority is given to those with a disability, you can:
- inquire about the disability to determine if the applicant qualifies for the housing.
- If the tenant makes a request for reasonable accommodation:
- and the disability and reason for the request is obvious- You cannot make any further inquiries about the disability.
- if the disability is obvious, but the reason for the request is not- You can request information that shows the need for the accommodation.
- if the disability and reason for the request are not obvious- You can make further inquiries as to the nature of disability (to make sure it fits the Fair Housing definition), the nature of the accommodation and how the accommodation relates to the disability.
10. Are There Requirements for New Construction?
Yes. Multifamily housing that is four units or more, constructed after March 13, 1991 and has an elevator, has to comply with seven construction requirements set by the Fair Housing Act to ensure equal housing for the disabled. This includes accessible light switches and entrances, as well as usable doors. For similar housing without an elevator, only the ground floor must comply with these requirements.