NAVNEET GREWAL NATIONAL HOUSING LAW PROJECT LAAC FRESNO TRAVELING TRAINING NOVEMBER 17, 2009 Housing Rights for Tenants with Disabilities

Goals Identify when a reasonable accommodation may be requested How to request a reasonable accommodation Enforcement Options

Statistics 41% of families living in federally assisted housing have at least one family member who is disabled. 41,101,667 people with disabilities 2007 American Community Survey:

Overview and Rules

Obstacles to Obtaining Housing Poor credit history related to disability Lack of accessible units Housing provider has a no-pets policy Limited mobility prevents applicant from coming to housing authority for interview Inability to find an accessible unit within a voucher payment standard Inability find a unit within the time from allotted by the housing authority

Obstacles to Maintaining Housing Missing Rent Payments Hoarding/Clutter Threatening behavior towards others Requesting a live-in aide Denials of portability Denials of transfers Missing recertification appointments Missing housing inspections

7 If a tenant has an obstacle to obtaining or maintaining housing because of a disability, the tenant can request a reasonable accommodation. A reasonable accommodation is a change in a rule, policy, practice, or service that may be necessary to allow a person with a disability the equal opportunity to use and enjoy a dwelling. How to Access Housing

FHA: 42 U.S.C. § § 3604, et seq Section 504 of Rehabilitation Act: 29 U.S.C. § 794 ADA 42 U.S.C. §§ et seq (and ADAAA) CA Laws: FEHA, Unruh, CDPA, CA Gov’t Code §11135 Sources of Law

9 When a qualified person with a disability makes a request that is: NECESSARY + REASONABLE = MUST GRANT ACCOMMODATION When Must a Housing Provider Grant a Request?

Qualified Person with a Disability (Federal) 10 Any person who:  has a physical or mental impairment that substantially limits one or more major life activities;  has a record of such impairment; or  is regarded as having such an impairment A current illegal user of a controlled substance is not disabled for the purposes of reasonable accommodation. However, an individual with a disability can include someone who has successfully completed a drug rehabilitation program, is currently in such a program, or is mistakenly regarded as engaging in illegal drug use.

Necessary Frees the tenant from a rule, policy, or practice that interferes with the person’s right to use and enjoy the dwelling. Enhances the person’s quality of life by ameliorating the effects of the disability. Enables the tenant to satisfy the essential requirements of tenancy.

Reasonable 12 No undue financial or administrative burden Can not fundamentally alter the nature of the program. Considerations for undue financial burden: benefit to tenant, costs, financial resources, and availability of less expensive accommodation. Will often cause at least some financial burden. Fundamental Alteration: the request would require the provider to change the nature of the services it provides

13 An accommodation may be denied if the tenant poses a direct threat to the health and safety of others. This must be objective, not subjective. Must look at nature, duration, severity of risk of injury, probability injury will occur, any accommodations that could eliminate the direct threat. Direct Threat

Making a Request

15 Disability: State that the tenant has a disability. It does NOT need to say the name of the disability and provider can not ask for medical records. Accommodation: The request should state what accommodation the tenant is looking for. Nexus: The request should state how the accommodation is related to the person’s disability and how it will help them access, utilize, or remain in the housing program. Making a Request

16 Requests may be oral or written. The reasonable accommodation process begins once a tenant tells a housing provider that they are disabled and need something changed in order to accommodate that disability. Written requests may be preferable Can be made at ANY TIME. Making a Request

Denial 17 If the housing provider finds that the requested accommodation is not reasonable, it’s obligation does not end. The provider should engage in an interactive process and try to determine with the tenant if another accommodation is feasible. If no alternative accommodation is agreed to, treated as a denial of the original reasonable accommodation request. For federally assisted housing – right to request a Section 504 hearing, which often substitutes as the interactive process.

Enforcement Methods

Informal Advocacy Engaging with the housing provider Written request Follow-up Interactive process PHA hearing

Answer to UD A reasonable accommodation may be requested as an answer to an unlawful detainer action The request may be made even after the action has been filed, until the “proverbial last minute.” Note that raising a reasonable accommodation issue in a UD may prevent the issue from being raised affirmatively as a fair housing claim.

HUD/DFEH Complaint One year statute of limitation Can be filed quickly – online, by mail, or by phone Duty to conciliate If conciliation fails and HUD finds cause, may proceed to ALJ, or through DOJ in federal court Often difficult to get a finding of cause Will often push the housing provider to settle Compensatory damages, injunctive or equitable relief, and civil penalties in the public interest between $11,000 to $55,000.

Affirmative Litigation Two Year Statute of Limitations Can be filed concurrently with HUD/DFEH complaint State or Federal Court Compensatory damages, injunctive or equitable relief, and punitive damages, attorney fees

Writ of Mandamus A court may issue a writ of mandate to any “to any inferior tribunal, corporation, board, or person” Compels performance, stays action, or requires the lower authority to show cause why it is not in compliance with the law in question 90 days from date that administrative decision becomes final

Summary If a tenant with disabilities is having difficulty accessing or maintaining housing, advocates should consider whether a reasonable accommodation request is appropriate If a request is denied, there are several options for enforcement of a tenant’s fair housing rights to pursue

FOR TECHNICAL ASSISTANCE, TRAININGS, AND ONLINE RESOURCES: NAVNEET GREWAL STAFF ATTORNEY NATIONAL HOUSING LAW PROJECT (510) EXT