Resources for Tenants with Disabilities

THE RIGHTS OF TENANTS WITH DISABILITIES

Tenants with physical or mental disabilities have certain civil and human rights under federal, state, and city laws.  The common goal of all three layers of laws is to “level the playing field”:  to ensure that people with disabilities have the same opportunity as people without disabilities to enjoy and use their apartments and their residence’s common and public areas.  Serving as protections, this group of fair-housing and human-rights laws makes it unlawful for “housing providers” ― property owners, landlords, housing-management companies, and co-op boards, among others – and their employees to discriminate against tenants with disabilities.

 

Consequently, housing providers and their employees are prohibited by law from subjecting tenants with disabilities to terms or conditions that differ from – are stricter or less favorable than – those they require of tenants without disabilities.  This prohibition applies equally to double standards regarding privileges and treatment, such as management refusing to respond to maintenance calls or responding more slowly because of a tenant’s disability, or making threatening or intimidating remarks to a tenant because of his or her disability.

 

In addition, to eliminate both policy and physical barriers to the maximum personal use by tenants with disabilities of their rental units and common and public-use areas associated with their residence, the law prohibits housing providers and their employees from refusing to honor the request by a tenant with a disability for:

 

A reasonable accommodation.  This is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling, including public and common spaces.  The accommodation requested must be related to the disability of the person making the request.  It also must not require a housing provider to rack up unreasonable financial or administrative costs, or alter the essential nature of a housing provider’s operations.  Housing providers may not require persons with disabilities to pay extra fees or deposits as a condition of receiving a reasonable accommodation.

 

Examples of reasonable accommodations: A landlord notifies a tenant with multiple chemical sensitivities in advance of painting and pest treatments.  A landlord assists an applicant with a mental disability in filling out required forms or paperwork.  If a tenant with a disability needs oral reminders to pay the rent, the landlord agrees to call or visit to remind the person before each month’s rent is due.  A landlord makes an exception to the building’s “no pets” rule for people with disabilities who use guide dogs or other service or emotional support animals.  A tenant with a disability is permitted to move from a one-bedroom to a two-bedroom apartment to have space for her live-in care provider.

 

A reasonable modification. This is a structural change to be made to the interior or exterior of the unit of a person with a disability that may be necessary to afford her or him full enjoyment of the premises.  The exterior includes common and public-use areas.  The reasonableness of a proposed modification hinges predominantly on two factors:  a relationship between the disability of the person making the request and the intended modification, and assurance that the modification will be done properly and will comply with all necessary building and architectural codes.  While the housing provider must permit the modification, the tenant is responsible for the cost of the modification, except if the housing provider receives federal funds.

 

Examples of reasonable modifications: Widening doorways to make rooms more accessible for persons in wheelchairs; lowering kitchen cabinets to a height suitable for persons in wheelchairs.  Installing grab bars in bathrooms.  Replacing door knobs with levers for a person with arthritis.  Installing an automatic water faucet shut-off for people who can’t remember to turn off the water.  Installing pictures or color-coded signs for people whose cognitive disabilities make written signs impossible to use.  Disconnecting a stove and installing a microwave for a person unable to operate a stove safely.  Installing carpeting or acoustic tiles to reduce to reduce noise made by a person whose disability causes him or her to make a lot of noise.

 

 

IF YOU SUSPECT YOU HAVE BEEN THE VICTIM OF HOUSING DISCRIMINATION, YOU CAN FILE A COMPLAINT WITH ONE OF THESE GOVERNMENT AGENCIES:

 

The New York State Division of Human Rights

One Fordham Plaza, 4th Plaza

Bronx, NY 10458

718-741-8400; Toll-free number:  1-888-392-3644

New York City Commission on Human Rights

40 Rector Street, 9th Floor

New York, NY

212-306-7450

 

The United States Department of Housing and Urban Development

26 Federal Plaza, Room 3532

New York, NY 10278

212-264-5072; Toll-free number:  1-800-496-4294

 

 

REFERENCES:

 

  • “Reasonable Accommodations Under the Fair Housing Act,” Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Washington, D.C., May 17, 2004
  • “Reasonable Modifications Under the Fair Housing Act,” Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Washington, D.C., March 5, 2008
  • “What ‘Fair Housing’ Means for People with Disabilities,” Bazelton Center for Mental Health Law, June 2006
  • Fair Housing Guide:  Know Your Rights, New York State Division of Human Rights

 

SECTION 504 OF THE REHABILITATION ACT OF 1973 AND THE HOUSING RIGHTS OF PEOPLE WITH DISABILITIES

Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973, often simply called “Section 504,” is a federal law that nationwide prohibits discrimination against people with disabilities in housing-related programs, services, or activities conducted by HUD or that otherwise receive federal financial assistance – that is, that receive funding from the U.S. Department of Housing and Urban Development (HUD) or any federal department or agency. The definition of “federal financial assistance” under Section 504 is not limited to funding.  It means any grant, loan, contract, or any other arrangement by which a federal department or agency makes assistance available also as human (services of federal personnel) or physical (buildings or land) resources.

 

Section 504’s Protection and Definition of a Person with a Disability

 

Section 504 protects qualified individuals with disabilities and defines individuals with disabilities as persons with a physical or mental impairment which substantially limits one or more major life activities.  People who have a history or, or who are regarded as having a physical or mental impairment that substantially limits one or more major life activities, are also covered.  Major life activities include caring for one’s self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning.  Some examples of impairments which may substantially limit major life activities, even with the help of medication or aids/devices:  AIDS, alcoholism, blindness or visual impairment, cancer, deafness or hearing impairment, diabetes, drug addiction, heart disease, and mental illness.

 

Section 504’s Prohibitions

 

Not only does Section 504 outlaw disability-motivated discrimination expressed as exclusion from a federally-subsidized housing program, service or activity.  It also aims to prevent and, where it exists, to eliminate another traditional form of housing discrimination on the basis of disability:  segregation.  Thus, Section 504 prohibits the denial of a federally-funded apartment or house to an otherwise qualified buyer or renter because of a disability of that buyer or renter or another prospective tenant (that is, someone who will live with him or her), and bans the imposition of application or qualification criteria, rental fees or sales prices, and rental or sales terms or conditions that are different than those required or provided to person who are not disabled.

Equally importantly, Section 504 prohibits requiring persons with a disability to accept a different kind or lesser program or service than what is provided to others, and requiring them to participate in separate programs and services, even if separate programs and services exist.  For another example, housing providers may not require persons with disabilities to live only on certain floors, or to all live in one section of the housing.  In short, Section 504 makes it illegal to provide federally-subsidized programs or services to persons with disabilities in settings that are unnecessarily separate or restricted.

 

A key component of Section 504’s overarching goal of creating equal housing opportunity for persons with disabilities is the law’s removal of barriers through the obligatory promotion and implementation of programmatic and architectural accessibility.  Therefore, under Section 504 housing providers who are recipients of federal assistance must take steps, as needed, to ensure that existing housing programs are readily accessible and usable by persons with disabilities, and develop and implement a transition plan to ensure compliance.  To this end, Section 504 mandates that recipients of federal assistance provide reasonable accommodations (for example, readers, sign-language interpreters, and materials in accessible formats), with certain limitations, which may be necessary for a person with a disability to use or participate in a housing-related program, service, or activity.

 

In addition, recipients of federal assistance are required under Section 504 to ensure that all new construction of housing facilities is readily accessible to and usable by persons with disabilities, and meets the requirements of applicable accessibility standards.  They must also ensure that that substantial alterations, when undertaken, meet the requirements for new construction.

 

The definition of “recipient” in Section 504’s regulations includes, for example any State or its political subdivision (such as a county, city, town, or village), any public or private agency, institution, or organization to which federal financial assistance is extended for any program or activity directly or through another recipient.  However, the ultimate beneficiary of the assistance is not a “recipient” for the purpose of Section 504.  Thus, a HUD-funded public housing authority, or a HUD-funded non-profit developer of low-income housing is a recipient of federal financial assistance and is subject to Section 504’s requirements.  However, a private landlord who accepts Section 8 tenant-based voucher in payment for rent from a low-income individual is not a recipient of federal financial assistance.

 

TO REPORT A VIOLATION OF YOUR RIGHTS UNDER THE FAIR HOUSING ACT OR TO LEARN MORE ABOUT THE FHA, CONTACT HUD’S HOUSING DISCRIMINATION HOTLINE AT 1-800-669-9777(VOICE) OR 1-800-927-9275 (TTY).

 

REFERENCES:

 

  • “Key Provisions and Regulations Implementing Section 504 of the Rehabilitation Act,” www.hud.gov
  • “Section 504 of the Rehabilitation Act,” www.fairhousingrights.org
  • “Section 504:  Frequently Asked Questions,” www.lcha.ws
  • “What ‘Fair Housing’ Means for People with Disabilities,” Bazelton Center for Mental Health Law, June 2006

THE HOUSING RIGHTS OF HOMELESS PERSONS WITH DISABILITIES

Homeless persons with disabilities have certain civil and human rights under federal, state, and city laws, with respect to their application for and use of shelters and transitional housing programs.  Of particular relevance in this regard is the federal Fair Housing Act, a national law that prohibits housing-discrimination everywhere in the country on the basis of disability.  It applies to all types of housing intended as a short or long-term residence, including shelters that house persons for more than a few days, transitional housing facilities, and permanent housing facilities.  It also covers housing provided through dormitory-style sleeping units as well as apartments and single room occupancy units.

 

Under the Fair Housing Act – as well as another national law, the Americans with Disabilities Act, popularly known as the ADA, which outlaws disability-based discrimination in places of public accommodation, which includes, for example, emergency overnight shelters and social service facilities – homeless service providers cannot turn away persons with disabilities simply because of their disabilities or terminate residents because of a disability or disability-related behavior.  However, individuals with disabilities whose behavior would constitute a direct threat to the health or safety of other individuals are not protected under the Fair Housing Act or the ADA.

 

Homeless service providers are also prohibited under the Fair Housing Act from applying eligibility criteria that would screen out people with disabilities, such as stating that the shelter does not serve people with mental illness, HIV/AIDS, or service animals.  Nor are homeless service providers legally permitted to impose on people with disabilities terms or conditions that are stricter or less favorable than those expected or required of residents without disabilities.

 

In addition, homeless service providers are obligated to provide reasonable accommodations to prospective or current residents with disabilities.  Reasonable accommodations are changes, exceptions, or adjustments to a program, service, or procedure that will allow a person with a disability to have equal (to persons without disabilities) access to and enjoyment of the housing program.  There must be an identifiable relationship between the requested accommodation and the person’s disability.  Reasonable accommodations need not be provided if they would constitute an undue financial or administrative burden, or if they would be a fundamental alteration of the provider’s program.

 

Examples of reasonable accommodations include:  Waiving a no pet rule for a service animal.  Providing a bed assignment in an accessible location.  Reading the terms of an agreement aloud.  Filling out an application.  Providing alternate shelter options.  Allowing a caregiver to provide services on-site.

Homeless service providers who receive federal funding and engage in discrimination against persons with disabilities would be in violation of not only both the Fair Housing Act and the ADA but Section 504 of the Rehabilitation Act of 1973 as well.  This federal law prohibits disability-based discrimination nationwide in all programs or activities operated by recipients of federal financial assistance.

 

Section 504, with a few limited exceptions, prohibits federally-funded homeless service providers from providing, or requiring persons with disabilities to accept, accommodations that are different or separate from those offered to persons without disabilities.  Not only do Section 405 regulations mandate that programs and services be conducted in the most integrated setting appropriate, they also state that it is discriminatory for recipients of federal funding to select sites that have the purpose or effect of excluding qualified persons with disabilities from participating in or being denied the benefits of any federally-subsidized program or activity.  Section 504 regulations also require federally-funded homeless service providers to take appropriate steps to ensure effective communication with applicants, residents, and the public with communication disabilities.  Therefore, they should ensure that that their application and admission processes and the services offered are accessible to and understandable by persons with disabilities.

 

Finally, the ADA, the New York State Human Rights Law, and the New York City Human Rights Law make it unlawful to exclude from homeless shelters or any place of social service a person with a disability who is accompanied by a guide dog, hearing dog, or any other service animal, except when that animal behavior poses a direct threat to the health or safety of others.  In addition, a person with a disability who is accompanied by a service animal is not required to show proof that the animal is a service animal or to give any verbal or written confirmation to establish his or her disability.

 

IF YOU SUSPECT YOU HAVE BEEN THE VICTIM OF HOUSING DISCRIMINATION, YOU CAN FILE A COMPLAINT WITH ONE OF THESE GOVERNMENT AGENCIES:

 

The New York State Division of Human Rights

One Fordham Plaza, 4th Plaza

Bronx, NY 10458

718-741-8400

Toll-free number:  1-888-392-3644

The United States Department of Housing and Urban Development

26 Federal Plaza, Room 3532

New York, NY 10278

212-264-5072

Toll-free number:  1-800-496-4294

 

REFERENCES:

 

  • “Section O: Fair Housing & Civil Rights Laws,” Homelessness Resource Exchange, HUDHRE.info,
  • “Access Rights of People with Disabilities and Their Service Animals,” Lawyers with Disabilities, The Association of the Bar of the City of New York
  • “In from the Cold:  Making Homeless Shelters Accessible to People with Disabilities in the Nation’s Capital, Clearinghouse REVIEW Journal of Poverty Law and Policy, May-June 2009
  • “Homeless Service Providers and Fair Housing Compliance,” Christian McLeod, Assistant Director, Fair Housing Center of Washington

THE FAIR HOUSING ACT AND PEOPLE WITH DISABILITIES

The Fair Housing Act

 

The Fair Housing Act, as amended in 1988 – also known as the Fair Housing Amendments Act of 1988, or FHA for short – is a federal law that prohibits discrimination nationally in all types of housing transactions on the basis of disability, among other categories.  FHA defines equal opportunity to housing as a civil right for persons with disabilities and empowers the U.S. Department of Housing and Urban Development (HUD) to enforce the law’s provisions.

 

FHA’s Definition of a Person with a Disability

 

FHA defines persons with a disability to mean those individuals with mental or physical impairments that substantially limit one or more life activities.  The term “mental or physical impairment” may include conditions such as blindness, hearing impairment, mobility impairment, HIV infection, mental retardation, alcoholism, drug addition, chronic fatigue, learning disability, head injury, and mental illness.  The term “major life activity” may include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, speaking, or working.

 

FHA also protects persons who have a record of such an impairment, or are regarded as having such an impairment.  Current users of illegal controlled substances, persons convicted of illegal manufacture or distribution of a controlled substance, sex offenders, and juvenile offenders are not considered disabled under FHA.  FHA affords no protections to individuals with or without disabilities who present a direct threat to the persons or property of others.  Determining whether someone poses such a direct threat must be made on an individualized basis, however, and cannot be based on general assumptions or speculation about the nature of a disability.

 

FHA and Discrimination

 

FHA makes it unlawful everywhere in the nation to discriminate in any aspect of selling or renting housing against a buyer or renter because of the disability of: (1) that individual, (2) an individual associated with the buyer or renter (for example, an individual filling out applications for rental units is accompanied by her child with a developmental disability), or (3) an individual who intends to live in the residence that will be purchased or rented (for example, a person is a looking for a two-bedroom apartment so that he can move in with him an elderly parent who uses a wheel chair and requires around-the-clock care).

 

Housing Covered Under FHA

 

FHA covers all types of housing:  (1) housing that receives Federal assistance (for instance, HUD grants); (2) State and local government housing (for example, public housing); and (3) private housing.

 

Housing Professionals FHA Applies To

FHA applies to all individuals, groups, or other entities involved in the sale, rental, or management of housing:  landlords and property managers; real-estate agents, salespersons, mortgage and other brokers, loan officers, home sellers; homeowner and tenant associations, co-op and condo boards; housing authorities.

 

FHA’s Requirements

 

FHA establishes three sets of requirements and rights to remove physical, procedural, and policy barriers to the acquisition and full enjoyment of housing by persons with disabilities:  (1) reasonable accommodations; (2) reasonable modifications; and (3) design and construction standards.

 

FHA requires housing providers (1) to make reasonable exceptions in their policies and operations to afford people with disabilities equal housing opportunities (reasonable accommodations) and (2) to allow tenants with disabilities to make reasonable access-related modifications to their private living space, as well as to common-use spaces (reasonable modifications).

 

FHA establishes seven design and construction accessibility requirements for new multifamily housing with four or more units, whether federally funded or in the private sector, built for first occupancy after March 13, 1991:

 

  • Accessible entrance on an accessible route
  • Accessible public and common-use areas
  • Usable doors
  • Accessible route into and through the dwelling unit
  • Accessible light switches, electrical outlets, thermostats, and environmental controls
  • Reinforced walls in bathrooms
  • Usable kitchens and bathrooms

 

TO REPORT A VIOLATION OF YOUR RIGHTS UNDER THE FAIR HOUSING ACT OR TO LEARN MORE ABOUT THE FHA, CONTACT HUD’S HOUSING DISCRIMINATION HOTLINE AT 1-800-669-9777(VOICE) OR 1-800-927-9275 (TTY).

 

REFERENCES:

  • “7 Design & Construction Requirements,” U.S. Department of Housing and Urban Development
  • A Guide to Disability Rights Law, U.S. Department of Justice, September 2005
  • “The Fair Housing Act,” U.S. Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section, http://www.usdoj.gov/crt/housing/housing_coverage.htm

THE RIGHTS OF APARTMENT-HUNTERS AND APPLICANTS WITH DISABILITIES

Persons with physical or mental disabilities have the civil and human right to search and apply for housing without the concern that their disability will be the deciding factor, much less play any role whatsoever, in a housing provider’s consideration of their inquiry or application.  Federal, state, and city laws prohibit discrimination against persons with disabilities by housing providers – property owners, landlords, housing-management companies, co-op boards, real-estate brokers, salespersons, and real-estate boards – and their employees.  This ban equally applies to discriminatory housing policies and practices directed at apartment-hunters and applicants without disabilities who live with or are associated with individuals with disabilities, or will in the future.

 

A potent weapon in the fight against disability-based housing discrimination is New York State’s Human Rights Law.   In connection with the sale, rental, or leasing of housing, it makes it illegal:

 

  • To refuse to sell, rent, or lease housing to persons with disabilities.

 

Example:        A landlord has a policy of not renting to persons who are blind because she is concerned they will start fires when cooking or cause floods when washing dishes or bathing.

 

  • To offer different – less favorable or stricter – terms, conditions, or privileges to persons with disabilities than to persons without disabilities in the sale, rental, or leasing of housing.

 

Example:        A landlord makes the parents of children with a noticeable physical disability to agree that their children will never use the playground, laundry room, or elevator without parental supervision.

 

  • To provide different – less favorable, inferior, segregated – facilities or services to persons with disabilities in connection with the sale, rental, or leasing of housing

 

Example:        A landlord steers applicants with visual disabilities to apartments in the back of his building where there is less sunlight, believing that the sunnier apartments will better serve people who can see well.

 

  • To print or circulate a statement, advertisement, or publication in the sale, rental, or leasing of housing that expresses a limitation or specification that discriminates against persons with disabilities

 

Example:        An on-line or printed ad for an apartment says:  “Persons with mental problems or seeing-eye dogs need not apply.”

  • To use an application in the sale, rental, or leasing of housing that expresses any limitation or specification that discriminates against persons with disabilities

 

Example:        An application asks you to make a list of your disabilities or to check off from a list of disabilities.

 

  • To make any record or inquiry in connection with the prospective purchase, rental, or lease of housing accommodation that expresses any limitation or specification that discriminates against persons with disabilities

 

Example:        In asking you for more information about your background, the landlord says:  “You’re not in AA or any groups like that, are you?  People in recovery give me the willies.”

 

  • To discriminate against a sight- or hearing-impaired person because of his or her use of a guide dog, hearing dog, or service dog.

 

Example:        A landlord has a policy of turning away people with a guide dog, fearing that dog will urinate or defecate in the apartment or common areas.

 

In addition to the above restrictions, the New York State Human Rights Law makes it illegal for real estate brokers, real estate salespersons, and real estate boards and their employees:

 

  • To refuse to negotiate for the sale, rental, or leasing of housing.

 

Example:        A real estate agent refuses to negotiate for the rental of housing with a person with a disability.

 

  • To represent that housing is not available for sale, rental or lease when it is available.

 

Example:        A real estate salesperson shows housing to a person without an apparent disability but then tells a person who uses a wheel chair or is accompanied by a seeing-eye dog or a sign-language interpreter that the same housing is not available for rental.

 

NOTE:              There are only two types of housing accommodations that are exempt from the New York State Human Rights Law’s prohibition of disability-based discrimination:  rental units in two-family homes occupied by the owner, and rentals in rooming houses occupied by the owner or a member of the owner’s family.

 

 

IF YOU SUSPECT THAT YOU HAVE BEEN THE VICTIM OF HOUSING DISCRIMINATION IN VIOLATION OF THE NEW YORK STATE HUMAN RIGHTS LAW, YOU SHOULD CONTACT:

 

The New York State Division of Human Rights

One Fordham Plaza, 4th Floor, Bronx, NY 10458

718-741-8400; Toll-free number:  1-888-392-3644