The ability to request a reasonable accommodation is particularly helpful to people with disabilities who want to rent an apartment. As described earlier in this issue, a reasonable accommodation is a change to a policy or practice that allows a person with a disability to participate fully and equally in a housing program. Outlined below are some examples of requests for accommodations that people with disabilities often use when renting an apartment in the community.

Requesting that an application be mailed
Sally sees in the newspaper that her PHA is opening up the waiting list for the Section 8 certificate and voucher program. She wants to apply but the ad requires her to go to the PHA’s office. This is difficult for her to do because of her disability. Sally can request that the PHA provide her a reasonable accommodation and mail the application to her.

Applying for housing if you have a poor tenancy history or no tenancy history
Bob is a person with a disability who also happens to be in recovery. When he lived in his last apartment, he was drinking a lot. As a result of his drinking, he did not pay his rent on time and the police were called to the apartment several times because of loud noise and arguments. After six months in a sober housing program, Bob feels he is ready to move back into his own apartment. The manager for the apartment where he has applied, however, tells him that he will not rent to him because his previous landlord gave him a bad reference. Bob decides to appeal this rejection. He requests an accommodation to the landlord’s policy of rejecting applicants with poor tenant histories. In order to obtain the accommodation, Bob will need to show the landlord that:

• the poor reference from his previous landlord is disability-related (i.e., related to his alcoholism);
• he is no longer drinking; and
• there is a reasonable expectation that his poor behavior will not recur.

Bob can try to demonstrate his sobriety through written letters from substance abuse treatment providers such as the staff at his sober house, treatment groups he attends and/or his AA sponsor.

Service or companion animals
Sally is applying to a no-pets apartment building. Sally is a person with a cognitive disability and has a cat that is a companion animal. The building manager should allow Sally to keep the pet as a reasonable accommodation if she can demonstrate that she needs the pet because of her disability.

Personal Care Attendant
Ron is a person with AIDS. He has become very frail as a result of his disability and needs a live-in attendant to assist him with his personal care. When he applies to his PHA, he requests an accommodation to have a two-bedroom unit to allow his live-in attendant to live with him.

Parking
Stuart is about to rent an apartment. The manager tells him over the phone that the apartment building’s policy is to assign parking by seniority. She tells Stuart that everyone wants the spaces near the front door and this is the only fair way to deal with requests. Stuart tells her that he has a physical disability and as a result needs a parking space close to the front door. He requests a reasonable accommodation to the building’s parking policy.

Another important aspect of the federal housing laws is their ability to promote (and enforce) the creation of accessible or adaptable housing. The laws are designed to ensure that people with physical disabilities and mobility impairments have an equal opportunity to live in the community.

The federal housing laws are designed to ensure that additional accessible and adaptable housing is created over time by requiring that newly constructed or substantially rehabilitated buildings meet new access standards.

The FHAA requires that housing with four or more units first occupied on or after March 13, 1991 be designed to include:

	at least one building entrance on an accessible route;
	public and common use areas that are readily accessible and usable by people with disabilities;
	doors into and throughout the building wide enough to allow passage by someone in a wheelchair;
	dwelling units with:

• accessible routes into and through the units;
• light switches, outlets and thermostats in accessible locations;
• reinforcement in the bathroom walls to allow later installation of grab bars; and
• kitchens and bathrooms in which a person with a wheelchair can maneuver.

The design features required under the FHAA are referred to as "adaptable." This means that the unit can be used by used by someone who does not have a disability and can be adapted for use by someone who uses a wheelchair.

Section 504 has a different set of new construction requirements that must also be taken into consideration by HUD-funded housing programs, including public housing, Section 202, Section 811 and HUD-funded private developments. In HUD-funded housing developments that are newly constructed or substantially altered at least 5% of the units must be wheelchair accessible, and at least 2% of the units must be accessible for persons with hearing or vision impairments.

The federal housing laws also provide tenants with disabilities some opportunities to proactively make or request access modifications to existing buildings.

Private rental housing: The FHAA requires the owner of a private apartment building to allow a tenant to make reasonable modifications to his or her unit. The tenant, however, is responsible for making and paying for any modifications, and may have to restore the premises to its original condition when s/he moves.

Publicly–assisted rental housing: Many people with disabilities who have low-incomes cannot afford to make modifications to their rental units. In federally-assisted housing which is covered by Section 504, the landlord is often required to make and pay for the modifications if the cost is not prohibitive. A PHA, for example, may be required to put grab bars into a bathroom and/or build a ramp to a front door. Whether the cost of a modification is reasonable or not is evaluated on a case-by-case basis. Factors for consideration include: the size of the housing owner’s budget, whether the housing owner has accessible units available, the cost of the modification, and other factors.

Section 8 rental assistance: A private landlord participating in the Section 8 program is generally not required to pay for modifications. However, the tenant can request that the PHA administering the Section 8 program provide a "reasonable accommodation," and pay a higher rent for the unit, in order to allow the landlord to pay for some modifications to the unit.

Many people with disabilities, their advocates, and providers experience discrimination when they go to purchase or lease a property for use as a community residence. Some realtors refuse to show properties to social services agencies. Some realtors who have been willing to sell to consumer groups or service providers have been pressured by neighbors or community members to stop the sale. In some cases, neighbors have banded together and bought the house themselves to prevent people with disabilities from moving in. Finally, some communities have established zoning rules they hope will keep group residences from being sited in their community. All of these actions can be challenged under the Fair Housing Amendments Act.

There are three ways in which these types of barriers may violate, and therefore be challenged under, the FHAA:

(1) The community’s policy or practice has a discriminatory intent on people with disabilities: The policy or practice has the obvious intent of keeping people with disabilities out of the community. For example, a policy that requires all community residences to have public hearings might have a discriminatory intent under the FHAA.

(2) The community’s policy or practice has a discriminatory impact on people with disabilities: Some policies or practices are not obviously or blatantly discriminatory but have a discriminatory (or disparate) impact nonetheless. For example, policies which require community residences to be located 1,500 feet apart may intend to enhance integration, but if the impact is actually to keep people with disabilities out of certain neighborhoods, then the policy may be discriminatory under the FHAA.

(3) The community did not provide a reasonable accommodation to a local policy or practice which poses a barrier to people with disabilities: As described above, the FHAA requires the provision of reasonable accommodations when needed to allow a person with a disability an equal opportunity to use and enjoy housing. If a local policy or practice creates a barrier for people with disabilities, they have the right to request an accommodation. If this accommodation is reasonable, the community must provide it. For example, if a community has a requirement that no more than five unrelated persons may live in a property, a community residence for people with disabilities may request an accommodation to this requirement. If such an accommodation is not provided, the community may be violating the FHAA.

Overall, court decisions on these issues have been favorable to people with disabilities. However, this area of the law is still evolving. State and local courts have not consistently interpreted or applied the FHAA. Furthermore, only one court case involving the FHAA, the City of Edmonds vs. Oxford House, has been decided by the U.S. Supreme Court.

Outlined below are some of the most common NIMBY ("Not In My Back Yard") strategies used to prevent the siting of community residences and how the FHAA has been used to fight them.

Limits on the number of unrelated persons living together

Some communities seek to keep community residences out of "single-family" neighborhoods by capping the number of unrelated adults who can live in a home or by limiting the number of unrelated adults who constitute a "family." These restrictions are problematic for siting larger community residences.

Many but not all courts have struck down rules capping the number of unrelated adults or restrictive definitions of family. Importantly, in 1995 the U.S. Supreme Court, in its first interpretation of the FHAA, ruled that restrictive definitions of "family" may be challenged under the Fair Housing Act (City of Edmonds vs. Oxford House, Inc.). The Court did not go so far as to rule whether any particular restrictions are or are not illegal. More recently, a Pennsylvania community was sued for failing to allow a provider to locate a community residence for five adults with developmental disabilities in a single-family zone. The court ruled that the township’s zoning requirement had a discriminatory effect and therefore violated the FHAA.4

Special health or safety requirements for community residences

Some communities impose more stringent health and safety requirements for community residences than for homes occupied by people without disabilities. Examples include requiring sprinkler systems, fire notification systems, additional exits and other items which are not required in other homes in the same neighborhood. Many of these items – such as a sprinkler system – are very expensive. Others – such as a large fire safety alarm on the outside of the house – serve to identify the house as a community residence and make it more difficult to integrate the residence into the community. The imposition of different health or safety requirements can be challenged under the FHAA and many courts have upheld such challenges.

Rules requiring community residences to be dispersed

Some communities have requirements that community residence be spaced apart or dispersed a certain distance such as 1,000 feet apart. This can make it difficult to site community residences in certain neighborhoods. Human services agencies have often agreed to such policies, seeing them as a better than complete exclusion from a community. Such rules, however, can be challenged under the FHAA. A court in Pennsylvania found that a requirement to space community residences 1,000 feet apart violated the FHAA because: (1) the rule treated people with disabilities differently than people who do not have disabilities; and (2) as a result of the rule, people with disabilities were limited in where they could live.

Restrictive covenants

Restrictive covenants are a more direct way in which a community or neighborhood can seek to exclude community residences. A restrictive covenant, for example, might bar commercial activity from a certain residential zone. If a community residence is then classified as commercial rather than residential, it would be restricted from the neighborhood. These covenants can be challenged under the FHAA. In 1996, a New Mexico Court found that the siting of a residence for people with HIV/AIDS did not violate a restrictive covenant limiting site to "single family residential purposes." The Court found that enforcement of the covenant, without a reasonable accommodation interpreting the group residence as consistent with a "single family residential purpose," would have a discriminatory effect on people with disabilities and thus would violate the FHAA.

Prior community notification requirements

Some communities require that neighbors be notified when a property is being purchased as a community residence. In some cases state funders (e.g. state mental health agencies) require local providers to notify neighbors regardless of the local policy. Notification often has the negative impact of organizing the neighbors in opposition to a community residence. This is especially a problem where notification is required prior to purchase of a property. Such notification requirements violate the FHAA. In 1993, for example, a Maryland Court found that the County could not enforce a code provision requiring notification of the neighbors as part of an approval process "where no other county law or regulation imposes any similar requirement on a residence to be occupied by adult persons who do not have disabilities."

Property Values

Conclusion

The Federal Housing Laws are critical tools to expanding housing opportunities for people with disabilities. The last ten years have seen tremendous gains in affordable and integrated housing for people with disabilities. These gains serve to underscore the on-going need for vigilance to ensure that people with disabilities continue to be afforded the rights and protections to live in housing and neighborhoods of their choice.