Reasonable Accommodations in Housing

Transcription

1 Reasonable Accommodations in Housing D E B O R A H T H R O P E N A T I O N A L H O U S I N G L A W P R O J E C T L A A C T R A V E L I N G T R A I N I N G F R E S N O O C T O B E R,

2 Goals for Today Overview of fair housing laws and reasonable accommodations. Elements of a reasonable accommodation request. Requesting accommodations on behalf of people with mental health disabilities. We will work on hypotheticals throughout the presentation. 2

3 Meet Linda Linda came to your office because she just received a 3-day notice to comply or quit for violating the nopets policy in her building. Linda discloses to you that she has a dog because she gets depressed sometimes and the dog helps her get out of bed in the morning. What questions will you ask Linda? 3

4 4 Key Laws Relating to Disability Discrimination Federal Fair Housing Act - Applies to almost all housing Section 504 of the 1973 Rehabilitation Act Applies to federally funded housing enforced by HUD Does not apply to private housing or housing providers who accept Section 8 vouchers Americans with Disabilities Act (ADA) Title II applies to state or local government housing - enforced by HUD Title III applies to commercial facilities and public accommodations (e.g., rental offices, model units, childcare centers, community rooms) - enforced by US DOJ California Fair Employment & Housing Act Enforced by the California Department of Fair Employment & Housing (DFEH) 4

5 What is a Reasonable Accommodation? Change to a rule, policy, practice, service or procedure when such accommodations are necessary to afford a disabled person equal opportunity to use or enjoy the dwelling or program Applies to applicants and participants Required by FHA, Section 504, ADA and California FEHA 5

6 Elements of an RA Request Tenant must show she: Experiences a disability. The accommodation is necessary. The accommodation is reasonable. 6

7 Who is Person with a disability? Individual with handicap (disability) defined: Physical or mental impairment that: limits 1 or more life activities, or has a history of impairment, or is regarded as having impairment 7

8 Inquiring about Disability LL must strictly limit documentation to that which establishes existence of impairment and nexus LLs not entitled to ask for medical history or specific diagnosis Documentation requirement may be waived where impairment is obvious 8 Doctor or any health care professional with knowledge of person s disability can certify disability

9 When is an accommodation necessary? Frees the tenant from a rule, policy, or practice that interferes with the person s right to use and enjoy the dwelling. Must be a nexus between requested accommodation and the disability. Nexus: Enhances the person s quality of life by lessening the negative effects of the disability

10 When is an accommodation reasonable? No undue financial or administrative burden Can not fundamentally alter the nature of the program. Considerations for undue financial burden: benefit to tenant, costs, financial resources, and availability of less expensive accommodation. Will often cause at least some financial burden.

11 Interactive Process 11 Primary consideration is given to the RA request as made by the person with disability If request poses excessive burden, LL must engage in an interactive process to determine if an alternative, less-burdensome accommodation would offer equally effective, if not identical, results Delay/failure to engage may be considered a denial: Guard v. Ocean Sands, Inc., No , 1993 WL (H.U.D.A.L.J. Sept. 3, 1993) Bhogaita v. Altimore Heights Condo. Ass n, 2014 WL (11 th Cir. Aug. 27, 2014)

12 Direct Threat Exception A reasonable accommodation may be denied if granting the accommodation will: Create a direct threat to the health or safety of other tenants; or Result in substantial physical damage to the property of others.

13 Back to Linda What do you plan to include in the reasonable accommodation request? What if Linda is not currently seeing a doctor or social worker? Would your analysis change if Linda s dog is a pit bull? 13

14 Americans with Mental Illness Nearly 60 million Americans live with mental illness. In 2012, there were an estimated 9.6 million adults aged 18 or older that experienced a serious mental illness (a diagnosable mental, behavioral or emotional disorder resulting in serious functional impairment). (NIMH data) 14 As a group, people with mental illnesses are no more violent than any other group. Most people with mental illness who need treatment can be served most effectively and at the lowest cost by living independently in the community.

15 Now meet Jon 15 Jon makes in appointment at your office because he received an eviction notice. Jon makes loud noise at night and lately has been banging on the walls. You ask Jon about it and he says, the voices make me do it and so my doctor is trying out new medication. According to the eviction notice, a neighbor also complained because Jon made threats to the neighbor and his family. What can you do for Jon?

16 Behavioral Accommodations Case law establishes that tenants who have engaged in allegedly violent behavior or injury to others are entitled to reasonable accommodation if the behavior is related to a disability and there is a plan in place to acceptably minimize or eliminate future threat. Roe v. Sugar River Mills Assocs., et al., 820 F.Supp. 636 (D.N.H. 1993) Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009) Roe v. Hous. Auth. of the City of Boulder, 909 F.Supp.814 (D.Colo. 1995) 16

17 Be realistic! Behavioral Stipulations Involve a social worker, case manager, family member or other support. Be careful with language if tenant is agreeing to take medication or seek therapy. Stipulation before UD is filed v. under the jurisdiction of the court. 17 Be sure to include reasonable expiration and dismissal date (for probationary tenancies, 1-2 years is very long).

18 Tyrone s Story Tyrone, your new client, received a 60-day notice to quit. He says he thinks he knows why. You visit his apartment and find this: 18 You help Tyrone request as an accommodation that his LL rescind the notice and allow Tyrone time to clean up his apartment. In the meantime, City Code Enforcement inspects his apartment and threatens to fine Tyrone and the landlord for health and safety code violations. What are your options?

19 Hoarding Disorder DSM5 definition of Hoarding Disorder: Persistent difficulty discarding or parting with objects, regardless of actual value; The difficulty discarding is due to a perceived need to save and distress associated with discarding; The symptoms result in accumulation of possessions that congest and clutter active living areas and substantially compromise their intended use; The symptoms result in clinically significant distress or interference; The symptoms are not attributable to another medical condition; and They are not better accounted for by another DSM-5 disorder. 19

20 Accommodations for Compulsive Hoarders Case law supports accommodations for hoarders, even when health and safety code violations exist. Douglas v. Kriegsfeld Corp., 884 A.2d 1109 (D.C. App. 2005) Rutland Court Owners, Inc. v. Taylor, 997 A.2d 706 (D.C. App. 2007) Pine Valley Court Apartments v. Bowe, 2007 N.J. Super. Unpub. LEXIS 1604 (2007) (Docket No. A T2)

21 Factors to Consider for Reasonableness in a Hoarding Case PLAN: Does the client s proposal have specific indicia of a plan to completely cure the alleged violations? Has the client offered specific assurances that the housing unit will be restored to and maintained in a sanitary condition? TIME: How much time has the client already had before coming to you? How much time does the client ultimately need? ASSISTANCE: Does the client have help? Is the client willing to obtain help if he cannot do the work himself? Can the client afford to hire the necessary help or pay for storage? HAZARDS: How serious are the alleged hazards? 21

22 Resources 22 CA Dept. of Fair Employment and Housing (DFEH) HUD s Fair Housing Laws HUD s Section 504 Rehabilitation Act Americans with Disabilities Act Uniform Federal Accessibility Standards Reasonable Accommodations under the FHA HUD & DOJ memo CA RA Call, last Thursday of the 2 PM

23 Contact 23 Deborah Thrope ext. 3124