FAIR HOUSING FOR TENANTS WITH DISABILTIES UNDERSTANDING REASONABLE ACCOMMODATIONS AND REASONABLE MODIFICATIONS Ann-Marie Dooley Staff Attorney Legal Aid of North Carolina, Inc.

A BRIEF HISTORY… Fair Housing Act was originally enacted as Title VIII of the Civil Rights Act of 1968  Prohibited discrimination based on race, color, religion and national origin Section 504 of the Rehabilitation Act  Prohibited discrimination based on disability in programs receiving federal $$$ Fair Housing Amendments Act of 1988  Extended protection of the FHA to persons with disabilities Americans with Disabilities Act of 1990  Prohibited discrimination based on disability in government-funded programs and public accommodations

FEDERAL AND STATE LAWS Fair Housing Amendments Act of 1988 Section 504 of the Rehabilitation Act of 1973 Title II of the Americans with Disabilities Act of 1990 North Carolina Fair Housing Act

WHAT IS REQUIRED UNDER FEDERAL AND STATE LAWS No discrimination against persons with disabilities in the terms, conditions, or privileges or rental of dwelling Reasonable Accommodations – administrative change that removes barriers to equal access Reasonable Modifications – physical change that removes barriers to equal access

FORMS OF ILLEGAL DISCRIMINATION Intentional Discrimination Disparate Impact (harsher effect) Failure to Provide Reasonable Accommodations Failure to Allow Reasonable Modifications Failure to Design and Construct Accessible Housing

WHO IS PROTECTED? CIVIL RIGHTS DEFINITION Persons who: 1. have a physical or mental impairment substantially limiting one or more major life activities ; 2. have a history of such a physical or mental impairment; or 3. are regarded as having such an impairment

EXAMPLES OF DISABILITIES Visual Disabilities Auditory Disabilities Mobility Disabilities Aids & HIV + Alcoholism Past Substance Abuse Temporary Disability (accident or injury)

WHO IS NOT PROTECTED? 1. Persons currently engaged in illegal drug use. 2. Persons whose tenancy would constitute a “direct threat” to the health and safety of other individuals. 3. Persons whose tenancy would cause substantial physical damage to the property of others.

WHAT ABOUT PAST ILLEGAL DRUG ADDICTION AND ALCOHOLISM? Persons with a history of illegal drug addiction, but not currently using are protected Fair Housing protections include alcoholism, but exclude anyone who would pose a direct threat to health or safety of others, unless a reasonable accommodation could eliminate the threat

REASONABLE ACCOMMODATION The Duty: A housing provider must make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling In order to get a change in a rule, policy, practice or service, the tenant must request it!

MAKING THE REQUEST FOR A REASONABLE ACCOMMODATION Recommended that the request be made in writing If the disability is not apparent, the landlord may ask for verification There must be a nexus between the disability and the requested accommodation The request must be reasonable *

WHEN ACCOMMODATIONS MUST BE PROVIDED A landlord must provide a requested accommodation unless the landlord can show that doing so will: Impose an “undue burden” or Result in a “fundamental alteration” in the service provided by the landlord. The need for an accommodation may arise at anytime When applying During the tenancy To avoid an eviction

REASONABLE MODIFICATIONS The Duty: A housing provider must permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied by such person, if the modifications are necessary to allow the person full enjoyment of the premises If the housing is federally funded, it is the owner’s responsibility to pay for reasonable modifications (Section 504 of the Rehabilitation Act of 1973).

REASONABLE MODIFICATIONS Landlords may require the tenant to return the dwelling to its original condition, BUT only if the modifications will interfere with the next tenant’s use and enjoyment of the premises

LANDLORD HAS THE RIGHT TO... Condition permission for the modification based on assurance that the work will be done properly Ask the tenant to obtain any necessary building permits Ask the tenant to set aside a reasonable amount of money over a reasonable time in an interest bearing escrow account to pay for restoration

EXAMPLES OF FEDERALLY FUNDED HOUSING HOME Community Development Block Grants Section 202 and 811 Supportive Housing for Elderly or Persons with Disabilities McKinney-Vento Supportive Housing (permanent or transitional) USDA Rural Development Section 514, 515 & 538 Public Housing Authorities Project-based Section 8

FEDERAL PROGRAMS THAT DO NOT TRIGGER SECTION 504 Low-Income Housing Tax Credits Tax Exempt Bonds No federal funding involved except Housing Choice Vouchers or Shelter Plus Care assistance

THE APPLICATION PROCESS Landlords may not reject a prospective tenant’s application because of his or her disability or factors relating to the disability Landlords may not use stereotypes to reject an applicant

APPLICATIONS - continued PROHIBITTED QUESTIONS: Landlords may not ask an applicant if she has a disability Landlords may not ask for general information about an applicant that relates to disability  E.g. questions about whether an applicant can live independently or evacuate safely, etc. are prohibited

APPLICATIONS - continued A landlord may ask questions that show a tenant is able to meet the same obligations as any other tenant - as long as she asks these questions of all prospective tenants Examples: financial information to show that whether a tenant can pay rent references for tenant history (cleanliness and damage to apartment beyond normal wear & tear whether a tenant will comply with the building’s rules

ADMISSIONS EXAMPLES Mary had a serious illness that interrupted her working life and resulted in bankruptcy John had an untreated mental illness that created a period of uncontrolled spending, causing him to default on loans, pay bills late and hurt his credit history Susan, who was in recovery from addiction to illegal drugs, was convicted in the past on drug charges Sam had an untreated mental illness that resulted in homelessness and convictions for trespassing, vagrancy and assault

LEASE VIOLATION EXAMPLES A tenant with hearing impairment plays his TV and music too loud causing other tenants to complain (a device is available to assist the tenant in keeping the volume down) A tenant with a mental disability yells at other tenants during delusional periods, (treatment and medication will relieve the behavior)

ENFORCEMENT STATE AND FEDERAL LAWS File an administrative complaint with HUD or NC Human Relations Commission File a civil action in state or federal court Raising the issue as a defense or counterclaim (e.g. summary ejectment)

CONSEQUENCES FOR VIOLATIONS OF FAIR HOUSING LAWS Actual damages, including pain and suffering; Injunctive relief; Civil penalties of $10,000 for the first offense; and Punitive damages Low-Income Housing Tax Credit projects can have their tax credits recaptured by the IRS

APPENDICES Appendix A:Sample Notice of Right to Reasonable Accommodation Appendix B:Sample Request and Response Forms Appendix C:Housing Resource Guide Appendix D:Telecommunications Relay Service

RESOURCES * Local office of Legal Aid of North Carolina, Inc. * Local Human Relations Commission * NC Human Relations Commission * NC Fair Housing Center * NC Justice Center

QUESTIONS Ann-Marie Dooley, Staff Attorney Legal Aid of North Carolina, Inc. Post Office Box 3467 Greensboro, NC (336)