lael robertson supervising attorney mid-minnesota legal aid what is reasonable? – reasonable...
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Lael Robertson Supervising Attorney Mid-Minnesota Legal Aid
What is Reasonable? – Reasonable Accommodations in Housing Law
Mid-Minnesota Legal Aid – Housing Discrimination Law Project
Enforce low income clients’ fair housing rights
Includes right to reasonable accommodations
Disability Laws
Americans with Disabilities Act (ADA)
Minnesota Human Rights Act (MHRA)
Rehabilitation Act Fair Housing Act
(FHA)
Individual must have a “disability” or have a relationship or association with an individual with a “disability.”
Definition of “Disability” (42 U.S.C. § 12102)◦A person who has a physical or mental
impairment that “substantially limits” one or more “major life activities.” Major life activity include seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading.
“Disability” Definition from ADA
Definition, Cont’d“Disability” also includes:
◦A person who has a history or record of such an impairment.
◦A person who is perceived by others as having such an impairment.
Note – persons who are perceived to have a disability are not entitled to reasonable accommodations!
ADA Amendments of 2008
Intended to overturn case law that restricted the application of the ADA.
Impairment does not need to “prevent or severely or significantly restrict” a major life activity to be considered “substantially limiting.”
Mitigating measures (except glasses) have no bearing in determining “disability”
An episodic impairment = disability if:◦when active, substantially limits a major life
activity.
Fair Housing Act - 1968
Unlawful to take adverse action in housing based on protected class status.
Reasonable Accommodations - FHA
Housing provider is required to make change in rules, policies, practices or services IF:◦ Accommodation may be
necessary to give disabled person equal use and enjoyment of dwelling
AND◦ The change is not
unreasonable
Must Have Disability
Accommodation may be necessary for use and enjoyment of dwelling
Accommodation is related to disability or disability-related need (nexus)
Accommodation is reasonable
Reasonable Accommodations – 4 Step Analysis
“Unreasonable” RequestsImpose an undue financial or
administrative burden; OR
Require a fundamental alteration in the nature of the housing provider’s operations
RA ExamplesAt admission:
◦Waiver of no pets policy (no deposit allowed!)
◦Rent due on the 3rd instead of the 1st (for SSA payments)
◦Section 8/Public Housing – additional time to fill out paperwork
During Tenancy:◦Parking Space
At Termination:◦“Second bite at the apple” – retract
termination
Protected or Not Protected?
Resident with a dog
Protected or Not Protected?
Service Dogs
Protected or Not Protected?
Animals for Emotional Support?
Specific Cases: Service Animals
Allowing service animals is considered a “reasonable modification”
“Service Animal” has a specific definition under the ADA◦Only dogs and miniature horses ◦This is different than FHA!
In 2010, DOJ published specific regulations regarding the use service animals. ◦28 C.F.R. § 35.136; 28 C.F.R. §36.302(c))
Law is very specific in this area
Must Have Disability
Accommodation may be necessary for use and enjoyment of dwelling
Accommodation is related to disability or disability-related need (nexus)
Accommodation is reasonable
Reasonable Accommodations – 4 Step Analysis
Protected or Not Protected?
Resident with multiple dogs
Protected or Not Protected? Other Animals?
Must Have Disability
Accommodation may be necessary for use and enjoyment of dwelling
Accommodation is related to disability or disability-related need (nexus)
Accommodation is reasonable
Reasonable Accommodations – 4 Step Analysis
Even a client with a disability must remain lease compliant
Even a client with a reasonable accommodation (e.g., companion animal) must remain lease compliant
RAs at this stage – practically speaking – must have the potential of being effective
Reasonable Accommodations - Termination
Tips for success with RAs at termination:Specific Reasonable Accommodation PlanEarlier the better – particularly in the public
housing/Section 8 processAsk for it – any time! RAs are available at
admittance, during tenancy, and any time up until eviction.
Push back if there are unreasonable burdens attached – ◦ Fees, “deposits”◦ Liability Insurance
Know your resources – social workers, mental health workers, service providers
Be creative
Defenses to Reasonable Accommodation RequestsStanding Undue BurdenFundamentally AlterReasonablenessDirect Threat
Direct Threat ExceptionNothing in this subsection
requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. ◦ BUT – See Roe v. Sugar
River Mills &Cornwell v. Moore, 2000 WL 18887528 (2000)
Reasonable ModificationsStructural changes to existing
premises occupied or to be occupied by a person with a disability if:◦ such modifications may be
necessary to afford such person full enjoyment of the premises and
◦It’s not unreasonable
Modification Examples
Grab bars in the bathroom
Widening doorwaysLowering kitchen
cabinetsSwitching out carpet for
flooring
Who pays for the modification?Housing Providers have to allow
reasonable modifications, but tenants have to pay for them
Exception – if the building receives federal funds, then the housing provider must pay.
Where can I ask for a modification?NOT limited to the interior of a
dwelling.Public and common use areas,
too ◦Fitness centers
Exteriors of dwelling units ◦Entrances◦Garage areas
Do modifications have to be removed?Interior:
◦only where “it is reasonable to do so” and ◦where the housing provider has requested
the restoration. If the modifications do not affect use or
enjoyment of the premises, the tenant cannot be required to restore.
If required to restore, tenant must pay.◦Housing Provider may require an escrow.
Restoration, Cont’dExterior:
◦Tenant is NOT required to restore.
Accommodation/Modification vs. Design Standards FHA has accessibility
requirements of private landlords for newer buildings.◦www.fairhousingfirst.org
These are not accommodations – they are the law!◦Failure to comply is a separate legal
action.
Strategies and Tips
Strategic ConsiderationsWhen to ask for an
accommodationAlways in writing – even though it
doesn’t have to be.Client’s perspective on their
disabilityOther considerations –
◦Availability (i.e., apartments)◦Other accommodations that could
work
How do I get a Reasonable Accommodation?First Thing: ASK!
◦An individual should put his or her request in writing, and ask for a written response.
◦Request should be as specific as possible. ◦Housing Providers and Employers CANNOT
guess!If the opposing party says no:
◦ In the employment context, the “interactive process” is required. (29 C.F.R. § 1630.2(o)(3))
◦ Interactive process NOT required in housing.If they say no . . . .
ExamplesLetter Examples –
◦Reasonable accommodation request◦Medical provider support◦Exception to policies at admission
Enforcement OptionsDemand lettersNegotiated settlementsComplaints to HUD, MDHR, or a local agencyFederal or State Court
SHORT Statute Of LimitationsAdministrative Complaints
◦One year from date of last discriminatory incident
Court Complaints◦Claims under the FHA – 2 years◦Claims under the MHRA – 1 year
Filing with an administrative agency tolls the respective jurisdiction’s SOL
Useful Links http://www.ada.gov
◦Department of Justice’s ADA Homepage
◦Includes links to statute, ADA standards, brochures produced by the DOJ and other useful information
http://www.humanrights.state.mn.us◦Department of Human Rights website◦Includes form to start complaint
process
Useful Links (cont.) http://www.hud.gov/fhcomplaints
◦Department of Housing and Urban Development website
◦Includes electronic complaint filing form http://www.mylegalaid.org
◦MMLA Homepage ◦Includes online intake form
www.fairhousingmn.org◦Fair Housing materials, including HUD
guidance.
Contact Info Minnesota Disability Law
Center & Mid-Minnesota Legal Aid Intake Line ◦612-334-5970
Lael Robertson, Supervising Attorney, HDLP
612-746-3834lerobertson@mylegalaid.
org
Questions or Comments?