Reasonable Accommodations For Disabled Persons In Rental Housing
We’ve seen an uptick in lawsuits by tenants and their attorneys as of late, and a common denominator? Many of these suits could have been avoided if the landlord or property manager had some rudimentary knowledge of the law. One common action are wrongful eviction lawsuits, which can easily rack up tens of thousands in attorney’s fees and so we have admonished rental housing providers to have wrongful eviction coverage, but today, we’ll talk about potential lawsuits that may be lurking around the corner for landlords that lack proper knowledge surrounding disability-related accommodations.
As we noted in an earlier post on service and comfort animals, California law adapts a more inclusive list of disabilities than Federal law, catapulting tenants with mental impairments to a protected class.
As defined by California’s Fair Employment and Housing Act (FEHA), a disability is a condition that, if left untreated, limits a major life activity, while the American Disabilities Act (ADA) is a federal law that views disability more narrowly; to be afforded protections under the ADA, the disability must substantially limit a major life function if left untreated. Major illness that are manageable with medication are not likely to be grouped in this category.
So, for instance, HIV clearly affects day-to-day life. But its impact on the individual may differ. Either the condition limits their daily activity, or substantially limits it. Let’s assume for the time being that the tenant is in fact disabled. The disability triggers a new set of obligations for landlords to make reasonable accommodations.
Cal. Gov’t. Code § 12927 enables a disabled tenant to request a reasonable accommodation so that they can use and enjoy housing in a way that is equal to a person without a disability. The Code goes on to say that the rental housing policy must be bent, altered, or waived when necessary to accommodate a person with a disability, when a request is made.
Under Cal. Civil Code § 54.1, a landlord must permit the tenant to make reasonable modifications at the tenant’s expense and may require the tenant to restore the property to its original condition after moving out.
If, for example, a tenant asks for a ramp to be built so that they can move freely in and out the unit using a wheelchair and states that the tenant’s insurance company would pay for installation and removal costs if the tenant moves out, you are hard pressed to deny the request if it could be built with appropriate permits and it would not unreasonably prevent other tenants from entering or leaving their units.
Pivoting back to federal law, the Fair Housing Amendments Act (FHAA) mandates that rental buildings built after March 13, 1991 with four or more units have at least one elevator to provide reasonable accommodations and modifications. Federal Courts have consistently upheld elevator modifications, laxed parking requirements for physically challenged tenants and otherwise have ruled against rental housing providers that are not pliable to the reasonable requests made by disabled tenants, when the impact on the property owner is insignificant.
Of course, “reasonable” is an ambiguous term, and every case is different. To use our above analogy of a wheelchair bound tenant requesting to foot the bill for a ramp, one objection a landlord may make is that the ramp will “look bad”. If the landlord uses appearance as the lone reason for denying the construction of the ramp, this logic will likely not prevail in court.
The circumstances vary in each case, and rather than launching into hypotheticals, it is best to consult with an attorney that can evaluate the reasonableness of disability-related accommodation requests given your unique situation. It is far better to get it right the first time, than to risk a perilous discrimination suit down the road.
Some rental housing providers have the guiding principle that if the accommodation can be made with licensed contractors and with requisite permits, it should be allowed. This approach is probably a safe bet, but again, there are nuances in each case best journeyed with Bornstein Law.