Most multifamily owners and managers are aware that discrimination against disabled tenants can result in litigation and increase the project’s operating expenses. However, the Fair Housing Act (FHA) not only prohibits disability discrimination, but in some circumstances it affirmatively requires housing providers to make reasonable accommodations and reasonable modifications for individuals with disabilities. Though the terms reasonable accommodation and reasonable modification sound similar, their meanings and requirements under the FHA are distinct, and multifamily housing owners and managers should understand the difference.
What Is a Reasonable Accommodation?
A reasonable accommodation under the FHA is a change, exception, or adjustment to a rule, policy, practice, or service that is made so a person with a disability can have equal opportunity to use and enjoy housing (including public and common spaces). Examples may include allowing service animals in a no-pet building, providing reserved parking spaces, or adjusting rent payment methods or schedules. Housing providers are typically responsible for any costs associated with a reasonable accommodation.
What Is a Reasonable Modification?
Reasonable modifications, by comparison, are structural changes made to a unit or common areas to ensure an individual with a disability is able to fully use and enjoy the dwelling. Examples of reasonable modifications may include installing ramps, widening doorways, lowering kitchen counters, or modifying bathrooms for wheelchair accessibility. The FHA requires that housing providers permit disabled tenants to make reasonable modifications, at the tenant’s cost. Additionally, housing providers whose properties are developed, operated, or otherwise supported through federal funds are subject to Section 504 of the Rehabilitation Act, which obligates such providers to pay for the cost of reasonable modifications.
How Can Tenants Make These Requests?
Tenants may request reasonable accommodations or modifications at any time. These requests can be submitted by a person with a disability, the parent or guardian of a minor with a disability, or a household member on behalf of a family member with a disability. It is essential for all staff to be trained on their responsibilities in handling these requests, as applicants or tenants may approach any employee of the housing provider for assistance. Once an employee receives a request, the housing provider is obligated to appropriately route and respond to it within a reasonable amount of time.
Does a Provider Always Have to Permit a Reasonable Accommodation or Reasonable Modification?
No. A request for a reasonable accommodation or reasonable modification (at the housing provider’s expense under Section 504 of the Rehabilitation Act) may be denied if it poses an undue financial and administrative burden. Mere cost alone is not a sufficient basis for denial. Whether a request poses an undue financial and administrative burden is a highly fact-specific analysis that requires consideration factors that include but are not limited to: the cost of the request, the financial resources of the provider, the benefit to the requester, and the availability of alternative accommodations.
A request for a reasonable modification under the FHA may be denied if it would be a fundamental alteration of the provider’s operations. An example might include a request for the provider to offer transportation if the provider is not otherwise in the business of transportation services.
What if a Tenant’s Request for an Accommodation or Modification Cannot Be Granted?
If a housing provider is unable to grant a tenant’s specific accommodation or modification request, the provider is still obligated to propose alternative solutions that could meet the individual’s needs. Furthermore, housing providers cannot insist that a tenant move to a different unit in lieu of providing a reasonable modification or accommodation.
Housing providers must not only avoid discrimination against disabled tenants and applicants but must also ensure they are appropriately providing reasonable accommodations and modifications under the FHA and Section 504 of the Rehabilitation Act, if applicable. Non-compliance can result in costly litigation and divert time and resources away from multifamily owners and managers’ core operations. Recognizing this, it’s imperative for housing providers to understand their obligations under the FHA and Rehabilitation Act, and promote a culture of compliance by proactively training their staff and establishing clear policies and practices for responding to tenants’ accommodation or modification requests.
Frost Brown Todd counsels investors, developers, property managers, and other key stakeholders on multifamily housing transactions across the country. We stay at the forefront of all statutory and regulatory updates within the industry and are ready to assist clients with navigating the ever-changing regulatory environment. For more information, please contact the authors or any attorney with the firm’s Multifamily Housing industry team or Labor and Employment practice group.