Disability Law Index - Fair Housing Act: Reasonable Accommodations & Modifications

Statute:

42 U.S.C. § 3604(f)(3)

For purposes of this subsection, discrimination includes -

(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or

(C) in connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is 30 months after September 13, 1988, a failure to design and construct those dwellings in such a manner that -

(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;

(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and

(iii) all premises within such dwellings contain the following features of adaptive design:

(I) an accessible route into and through the dwelling;

(II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;

(III) reinforcements in bathroom walls to allow later installation of grab bars; and

(IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.

Case Law:

Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002).

  • A group home sued the city for under the ADA and Fair Housing Act for denying a zoning variance to operate a group home for people with brain injuries and developmental disabilities.
  • The requirements for reasonable accommodation under the ADA are the same as those under the FHAA.
  • Whether a requested accommodation is reasonable or not is a highly fact-specific inquiry and requires balancing the needs of the parties:
    • An accommodation is reasonable if it is both efficacious and proportional to the costs to implement it.
    • An accommodation is unreasonable if it imposes undue financial or administrative burdens or requires a fundamental alteration in the nature of the program. In assessing costs, the court may look at both financial and administrative costs and burdens. The mere fact that residents of the proposed group home "will at times require the assistance of the local police and other emergency services does not rise to the level of imposing a cognizable administrative and financial burden upon the community."
    • A zoning waiver is unreasonable if it is so "at odds with the purposes behind the rule that it would be a fundamental and unreasonable change."
  • Whether the requested accommodation is necessary requires a showing that the desired accommodation will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability.
  • "Equal opportunity" means the opportunity to choose to live in a residential neighborhood. The FHAA prohibits local governments from applying land use regulations in a manner that will give disabled people less opportunity to live in certain neighborhoods than people without disabilities. Often, a community-based residential facility provides the only means by which disabled persons can live in a residential neighborhood, either because they need more supportive services, for financial reasons, or both. When a zoning authority refuses to reasonably accommodate these small group living facilities, it denies disabled persons an equal opportunity to live in the community of their choice.
  • The right to appeal for a variance is not in and of itself an accommodation. "Merely because a group home will have the right to open in limited cases is not an accommodation, however, it is merely good fortune."
  • A denial of a variance due to public safety concerns or concerns for the safety of the residents themselves cannot be based on blanket stereotypes about disabled persons rather than particularized concerns about individual residents.

Articles:

Reasonable Accommodations under the Fair Housing Act - (DOJ & HUD)
One type of disability discrimination prohibited by the Act is the refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. This statement provides technical assistance regarding the rights and obligations of persons with disabilities and housing providers under the Act relating to reasonable accommodations.

Reasonable Modifications under the Fair Housing Act - (DOJ & HUD)
The guidance is designed to help housing providers and homeowners’ associations better understand their obligations and help persons with disabilities better understand their rights regarding the “reasonable modifications” provision of the federal Fair Housing Act.