I received an application for a vacant unit. The prospective tenant uses a wheelchair and has requested modifications to the bathroom for accessibility. What are my obligations under fair housing laws?
Under federal and state fair housing laws, we can never discriminate when renting to someone based upon disability. This means a decision to decline an applicant shall not stem from an individual’s actual or perceived disability, and, as to disabled prospects, we may not refuse to make a reasonable accommodation in our policies and practices. Examples of reasonable accommodation include permitting an assistive animal to live with the resident in a building with a “no pets” policy, transferring someone with mobility issues to a ground-floor apartment that becomes vacant without increasing the rent, reserving a parking space closer to the building’s entrance for someone who is wheelchair bound, and extending the move in time period for a tenant with physical and/or mental disabilities.
In addition to making reasonable accommodations, housing providers must also allow reasonable modifications to the physical structure of the building and rental unit. A reasonable modification is defined as a physical alteration of the existing housing that may be necessary to provide someone with a disability an equal opportunity to enjoy their home. Common examples include exactly what is being asked here: widening a doorway to allow wheelchair access, installing ramps, placing grab bars in bathrooms, removing or lowering kitchen/bathroom cabinets, or utilizing flashing doorbells.
Does this law require you to erect an elevator in a 1914 Edwardian? No. A modification request must be “reasonable,” meaning the modifications do not impose an undue financial burden on you or otherwise require a fundamental alteration in the nature of the housing services offered at the property. In addition, the tenant in most instances must pay for the costs of making the modification, including the expense of restoring the property to its original condition once the tenancy terminates. However, when a housing provider receives direct federal funding such as project-based Section 8, the landlord may be required to cover the costs. Also, all apartment buildings of more than four units built after March of 1991 must meet disability accessibility standards, and buildings that fail to meet these standards must be retrofitted at the owner’s expense.
When a tenant is cost-responsible to make desired modifications, the law places the burden to procure permits and to perform the project in a “workmanlike manner” on the resident. That said, this author strongly advocates that you never allow the tenant to perform the modification. Instead, always use your vendors, and direct the work yourself to completion to ensure that it is done properly. Arguably, if aesthetic considerations inflate the budget, you are responsible for the cost difference. So what! You are better served paying some or even all the modification costs to guarantee that everything is performed correctly and in an aesthetically appealing manner. The last thing you want is unpermitted and shotty work done on the building that may be structurally damaging or the source of a notion of violation.
Finally, act promptly. Once the request is submitted, time is of the essence since delays may be deemed as discrimination. You may request a verification letter from residents when the need for the modification is not obvious, but the verification letter should only confirm that the applicant has a disability-related need for the modification being sought.
SFAA devotes a substantial amount of member resources to fair housing, so please take advantage of the class offerings, legal Q&As, and forms we provide to help housing providers navigate this increasingly important topic.