Fair Housing Tips

The Fair Housing Tip of the Month is a product of the Fair Housing Awareness Training Project for Homeless Shelter and Transitional Housing Providers, a project of Mental Health Advocacy Services funded by a grant from the U.S. Department of Housing & Urban Development, Fair Housing Initiatives Program, Education & Outreach Initiative, Disability Component (Grant #FH400G05009).

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Disclaimer: The Fair Housing Tip of the Month program is for educational purposes only and does not constitute legal advice. If you have a legal question, please contact MHAS or another attorney of your choice.

#1  Questioning Prospective Guests and Residents
June 2006

Questions posed by a housing provider to a prospective resident must be aimed solely at determining whether the applicant would make a good tenant. Questions that aim to reveal whether the person has a disability, or the extent of any disability, violate fair housing laws.

For example, a housing provider may ask whether a prospective tenant will be able to pay his rent on time (if applicable), comply with necessary and reasonable program rules, and care for the facilities in a reasonable manner. A provider may ask whether the applicant will refrain from damaging the property, harassing other tenants, impinging on the quiet enjoyment of others and engaging in criminal activity that involves drugs or threatens the health, safety or rights of others. The provider also may ask if an applicant has a negative tenant history, i.e., if she has ever damaged a rental property, harassed other tenants, been evicted for failure to pay rent, etc. A provider may not ask if an applicant has a physical or mental disability, nor may he ask if an applicant is undergoing psychiatric treatment or if she has ever been hospitalized.

There are, however, narrow exceptions to this general rule. If a housing program is linked to a funding source that requires serving a specific population, a provider may inquire as to whether the applicant is a member of the target population. For example, if the prospective resident is applying for housing specifically designated for people with disabilities or with disability as a preference, the provider may request documentation to show that an applicant is disabled, such as an SSI or SSDI award letter or a letter from the applicant's doctor, case worker, or other qualified professional stating that the applicant has a disability. If the housing is set aside for people with a certain type of disability, the provider may ask if the applicant has that specific disability, and for documentation to demonstrate it (again, this could be a letter from the applicant's doctor, case worker, or other qualified professional stating that the applicant has the specific disability for which the housing in question is reserved).

Under no circumstances may a housing provider request an applicant's medical records. Likewise, a housing provider may not request information divulging the details of an applicant's disability over and above what is necessary to meet program requirements. For example, if the housing program is limited to HIV+ individuals, a housing provider may ask if an applicant is HIV+, but upon receiving verification that she is, he may not inquire as to her T-cell count.

Where supportive services are also provided by the housing program, it may be appropriate and necessary to obtain more in-depth information about a person's disability, but this should be done separately from the housing process and after a person has been accepted for housing.

Any information regarding the disability of any applicant to an emergency shelter or transitional housing program is to be held in confidence and not revealed to anyone outside the housing program, even non-housing staff members (such as social workers or life-skills teachers), except with specific, time-limited, written authorization from the applicant.

By focusing on an applicant's ability to be a good tenant instead of his disability, emergency shelter and transitional housing providers are better able to meet the twin goals of screening for good prospective tenants and preserving the privacy and dignity of their applicants.

#2  Dealing With a Negative Tenant History
July 2006

A "problem tenant" can become a great tenant if the circumstances that led to his problematic behavior are ameliorated. Fair housing laws require that transitional housing applicants be given, as a reasonable accommodation, an opportunity to explain any negative information in their tenant histories that are attributable to a disability, and to explain why those past actions are unlikely to repeat.

If an investigation into the tenant history of a housing applicant with a disability reveals negative information, the housing provider should give the applicant an opportunity to explain it. It may be that the circumstances that led to the unacceptable behavior have changed or there might be some reasonable accommodation that would enable the applicant to better fulfill his obligations as a tenant.

Perhaps the applicant experienced severe symptoms that caused him to act out while adjusting to a new medication, but he has since stabilized. Perhaps the poor tenancy period began at the onset of a mental illness before any treatment was undertaken. It may be that the applicant at one point could not pay his rent because of a time lapse between becoming disabled and beginning to receive SSI; however, since his SSI started he has used good judgment in managing his money and is unlikely to make late payments in the future. Sometimes a mental disability makes it difficult for a tenant to remember when to pay the rent, but an accommodation, such as a simple monthly reminder of the rent due date, would enable the tenant to pay his rent on time.

The housing provider, after giving the applicant an opportunity to explain any negative information, has the responsibility of deciding whether the applicant would make a good tenant or resident, in light of the applicant's current circumstances, without allowing the stigma of disability to cloud her judgment. If the explanation of the poor history does not reveal a disability, or if no explanation is given, or if the explanation does not allay the provider?s concern that the troubling behavior is likely to recur, the negative tenant history may be used as a basis to reject the applicant.

It is recommended that housing providers give all applicants, not only those with disabilities, an opportunity to explain negative tenant history. This practice protects applicants who may initially be reluctant to reveal their disabilities.

The surest way to protect prospective residents' rights and ensure that the provider is complying with fair housing laws is to ask the same set of questions for all applicants. It is also recommended that every applicant be given a written notice of the transitional housing program's obligation to provide reasonable accommodations to applicants with disabilities. Finally, any time a provider rejects an applicant because of poor tenant history, it is good policy to remind the applicant that he may, as a reasonable accommodation, request an opportunity to explain the negative actions and why they are unlikely to recur.

#3  Requests for Reasonable Accommodations
August 2006

Granting a resident's request for a reasonable accommodation isn't just "nice" -- it's the law. The law provides an established guideline to help housing providers determine when a requested accommodation is "reasonable" and must be granted.

The first question a housing provider must ask when faced with a request for an accommodation is whether the person requesting the accommodation has a disability as defined in fair housing laws. The housing provider may ascertain this by requesting that the individual provide verification from a medical or social services provider that he meets the statutory definition of disability and needs the particular accommodation. If the disability is obvious, there is no need to request documentation. The provider must not, however, inquire into the nature, severity or other details of the person's disability.

For example, if a resident requests permission to keep an emotional support animal with him in spite of a "no pets" rule, the housing provider may request documentation that the resident has a covered disability that is alleviated by the presence of the animal. The provider must not ask what the disability is, but she may ask why the presence of the animal would be helpful. This is a very fine line with which providers must be careful.

Emergency shelter providers may find, in many instances, that requiring documentation from a medical or social services provider is unnecessary or infeasible and may choose instead to rely on the information provided by the person. The individual with a disability retains the right to provide documentation of his disability in the event that shelter providers do not accept his assertion that he has a disability.

The second question to be asked when considering the reasonableness of a requested accommodation is whether the accommodation is necessary to afford the person an equal opportunity to use and enjoy the dwelling, including public and common use areas. In other words, is there a nexus between the disability and the requested accommodation? A provider may request verification from a third party (such as the person who wrote the letter verifying disability) that there is a relationship between the disability and the requested accommodation.

Next the housing provider should ask if granting the accommodation would be a financial or administrative burden. A housing provider is expected to shoulder some cost in providing a reasonable accommodation to a person with a disability, but does not need to bear an undue burden. Factors to consider in determining whether a proposed accommodation constitutes an undue financial burden are the cost of the accommodation, the financial resources of the housing provider, and the ability of the provider to recoup the costs.

The last question the housing provider should ask is whether the requested accommodation would fundamentally alter the nature of the program. For example, if a resident requests assistance with personal hygiene care because his disability makes self-care impossible, granting this request would fundamentally alter the nature of a program that provides only housing, and so by definition the requested accommodation would not be reasonable. A request to allow a resident with a disability extra time to finish certain activities when necessary, on the other hand, would not fundamentally alter the nature of the program, and therefore would be reasonable.

If the person has provided evidence that the requested accommodation is needed to overcome a disability-related barrier to the housing program, and if making the accommodation would not be overly burdensome for the housing provider or alter the fundamental nature of the program, the house provider must grant the request.

If the requested accommodation would prove too burdensome to the housing provider, it is recommended that the provider and the person making the request engage in a dialogue to reach an agreement on an effective alternative accommodation.

While there is a definite process by which to analyze a request for a reasonable accommodation, there are no magic words that must be used to request one. Furthermore, the request does not need to be in writing. If a reasonable person would interpret a statement to be a request for a reasonable accommodation, then the statement is a request for a reasonable accommodation. It is a good idea, however, for a housing provider to give applicants a written form for making requests and to make sure residents know they are entitled to such accommodations.

A reasonable accommodation request may be made at any time of a person's residency, in the application process, during the stay at the housing program, or at the termination of residency. A person may request a reasonable accommodation even if the housing provider did not know he had a disability when he moved in.

It is essential that housing providers consider and respond to requests promptly. A delay could be considered a denial or refusal to accommodate, and a denial of a reasonable accommodation is a violation of fair housing laws.

#4  Emotional Support Animals
September 2006

Emotional support animals provide crucial assistance to many individuals with mental disabilities.  Emergency shelter and transitional housing providers are mandated by fair housing laws to make exceptions, whenever reasonable, to a no-pets policy as an accommodation to those individuals who require such animals. 

As always with the concept with reasonable accommodation, “reasonable” depends on many factors and must be decided on a case–by–case basis.  The resident making the request must show that the accommodation is necessary to afford her an equal opportunity to live in the shelter or housing program. A letter from a doctor or therapist will suffice as evidence. Unless the housing provider is prepared to show that allowing the animal would impose an undue financial or administrative burden, or would a fundamentally alter the nature of the program, the accommodation request must be granted.  Factors to be considered by the housing provider could include the type and characteristics of the animal, size and layout of the living space, and health and safety concerns.

When an individual with a mental disability requests that her emotional support cat be permitted to spend the night with her in a shelter, several factors go into the decision.  The shelter might consist of one large space shared by many people, some of whom are allergic to cats.  In this case, allowing the cat to stay would create an onerous burden for the shelter provider, who would need to provide a separate safe space for those residents who could not co-exist with a cat.  This would not be a reasonable accommodation.  If, however, the cat’s owner could demonstrate that her cat did not shed much and would remain by her side in a corner of the shelter where it would not disturb the residents with allergies, then it might be reasonable to allow the cat.  Or, if the individual approached the shelter when there was only one bed remaining and the program operator knew that none of the other residents would be adversely affected by the cat, it would be reasonable to allow the cat into the shelter because it would not pose an undue burden on the shelter provider. 

If an individual with a mental disability were to request the same accommodation when applying to a transitional housing program, the analysis would be different. In a transitional living situation, the cat could be permitted in the private space granted to the resident without interfering with the operation of the program.  In this situation, as long as the resident is able to properly care for and clean up after the cat, allowing the animal would not be much of a burden.  Therefore, the accommodation would be reasonable.

On the other hand, if a resident is unable to care for her cat and requests that the housing manager do so for her, the provider could rightly argue that this is not a reasonable accommodation because it would require a fundamental alteration of the program.

The outcome of the reasonable accommodation analysis will vary, depending on the type and characteristics of the emotional support animal.  To allow the presence of a quiet, caged salamander that provides emotional support to a resident would likely be a reasonable accommodation, as the salamander would not disturb anyone and therefore would not place any extra burden on the shelter or transitional housing provider.  A hyperactive monkey, however, or a very vocal caged bird, might be a burden because either of these animals could adversely affect the other residents.

It is helpful to remember that emotional support animals are not, legally speaking, pets.  Therefore, they should be exempt from any pet-deposit rules.  However, charging a resident for any actual damage caused by his emotional support animal is permitted.

#5  Substance Abuse As a Disability
October 2006

A resident with alcoholism is considered disabled under fair housing laws and is entitled to reasonable accommodations, but a resident who currently abuses an illegal controlled substance is not considered disabled.  In addition to protecting active alcoholics, fair housing laws also protect alcoholics in recovery, former drug addicts, and drug addicts currently in treatment.

Current alcohol abuse and current drug addiction are treated differently under fair housing laws.  The laws do protect an alcoholic currently using alcohol; they do not protect someone who is currently using an illegal controlled substance.  Former addicts are protected by fair housing laws whether they were addicted to alcohol or an illegal substance.

If a person’s alcoholism makes it difficult to abide by the housing program’s rules, fair housing laws require that a reasonable accommodation be attempted to assist the person in abiding by the rules in order to remain in the housing.  This is a very difficult area because the housing provider is faced with both the legal requirement to offer a resident with a disability a reasonable accommodation and the practical need to uphold the sobriety standards that enable the program to function and help its residents maintain a sober lifestyle.  Some providers make a reasonable accommodation by allowing a participant who has violated a no-alcohol rule to go to a rehabilitation program while holding his bed.  This approach complies with the law, while at the same time making it possible to uphold a program’s sobriety standards.

Another difficulty is that the housing provider might need to initiate the discussion of reasonable accommodation.  For example, when a reasonable accommodation is necessary to avoid an eviction, case law suggests that a housing provider who is aware of a resident’s disability has an obligation to initiate the discussion.

For alcoholics, conduct is the crucial element to be considered.  For example, an alcoholic guest in an emergency shelter cannot be asked to leave merely for being in a state of drunkenness, as this is a manifestation of a disability.  On the other hand, if an alcoholic guest is drunk and behaving in a disruptive manner, there should be an attempt to provide a reasonable accommodation, such as giving him time to cool off and sober up.  If the alcoholic continues to act in a disruptive manner that interferes with program operation and no other reasonable accommodation can be agreed upon, the shelter operator can ask him to leave because of his behavior. 

Someone who is high on illegal drugs, on the other hand, can be asked to leave because she is breaking the law (even though she may have an underlying disability and is using the illegal drugs to self-medicate).

The law is reasonably clear that someone who has used drugs as recently as one month ago is a current user, and someone who hasn’t used for at least a year is not considered a current user.  The difficulty arises when the drug use took place more than a month ago and less than a year ago, as the law is not clear as to whether this should be considered “current” use.  The law is not clear on what “currently in recovery” means; however, someone actively involved in a drug addiction recovery program is likely “currently in recovery.”

Additionally, an applicant’s current alcoholism or past drug addiction may not be used as a reason for refusing him admission into a shelter or transitional housing program.  In spite of this protection for former drug addicts, it is legal to ask if an applicant has been convicted of the illegal manufacture or distribution of a controlled substance or if he has any other criminal record.

#6  Direct Threats From Residents
November 2006

When faced with a resident who is behaving in an abusive or directly threatening manner toward another resident or program employee, a housing provider must protect those being threatened and might need to have the abusive/threatening individual removed from the housing.  However, if the abusive or directly threatening behavior is due to the resident’s disability, an accommodation to minimize the risk posed by the person’s behavior must be attempted, if reasonable, before making any attempt to remove the resident from the housing.

Fair housing laws do not require a housing provider to allow a person who poses a direct threat to others to remain in his or her housing if nothing can be done to satisfactorily mitigate the danger.

While case law has not developed clear parameters as to when a resident is a direct threat to the health and safety of others, a guiding principle is that the “abusive or directly threatening behavior” must consist of actual abuse or an actual threat.  A direct threat can exist even in the absence of actual harm to other residents.  A housing provider must make an individualized assessment considering the nature, duration and severity of the potential injury, the probability that injury will actually occur, and whether there are any reasonable accommodations that can be made to eliminate the direct threat.  It is not reasonable to put other residents in danger in order to accommodate someone who is overtly dangerous. 

On the other hand, housing opportunities cannot be curtailed for a person with a disability merely because his behavior makes other residents uncomfortable.  Acting “strangely” and provoking fear in others is not grounds to deny housing to a person with a disability, nor is speculation or stereotype about a particular disability or disabilities in general.

Depending on the context and type of abusive/threatening behavior, different types of accommodations would be reasonable.  For example, damage to property would be treated differently than violence against another person.  In an emergency shelter, there may be less flexibility for accommodation than in transitional housing, as shelter residents are in closer proximity and the opportunity for violence and injury is greater. 

If anyone is threatened with bodily injury or death in any type of housing, the appropriate security should be alerted (this could be the police or program security guards, depending on the situation).  If there is not an imminent and substantial risk of great bodily injury, another way to deal with the situation might be to discuss with the resident the inappropriateness of the behavior and ask if there might be some way to work together to put an end to the behavior.  A transitional housing provider might suggest the involvement of the resident’s social worker or therapist, if she knows that the resident is working with someone.  This might resolve the problem, and if not, it will serve as evidence of having attempted an accommodation, thereby providing some protection to the housing provider in the event of future litigation.  There is little case law on the direct threat exception to fair housing laws, but there is enough to suggest that when a housing provider knows of a resident’s mental disability, he must initiate a discussion of reasonable accommodation before evicting a resident for disability-related threats.  This is an exception to the general rule that the resident is the party who requests the reasonable accommodation.

As a last resort, a housing provider can take the appropriate steps to remove the resident from the housing.  In such circumstances, the housing provider should be prepared to demonstrate that she attempted a reasonable accommodation but it failed to acceptably minimize the direct threat, or that after consideration she determined that no reasonable accommodation could have minimized the risk.  The housing provider must be prepared to show objective evidence of overt acts that caused harm, or directly threatened harm, in order to establish that the resident was a “direct threat,” and such evidence must be recent.

The two goals of protecting residents and employees from abusive and/or directly threatening behavior and accommodating a resident whose inappropriate conduct is the result of a disability may seem like competing interests, but appropriate use of reasonable accommodation makes it possible to accomplish both goals while complying with fair housing laws.

#7  Transitional Housing Program Participants are Tenants
December 2006

Like other tenants in California, residents of transitional housing programs are generally entitled to 30-day or 60-day notice before being evicted.  In limited emergency circumstances, however, program operators can use the Transitional Housing Participant Misconduct Act (THPMA) to expedite the process of removing residents engaging in abusive behavior or misconduct.

Regardless of the terminology of the program agreement or lease signed by the resident, the laws governing the relationship between a person who lives in a transitional housing program and the program’s operator are the same as those that govern any other landlord-tenant relationship.  If the program operator and the resident have an agreement that the resident is allowed to stay in a unit in exchange for either money or performance of certain chores, no matter how meager, a tenancy has been established.  As a result, the resident is entitled to certain protections.  This means that it is illegal for the program operator to order a resident to leave, even if the resident violates the rules or engages in abusive behavior.  Rather, unless the resident has been in the transitional housing program for less than six months, the program operator must give the resident either a 3-day, 30-day, or 60-day notice, depending on the situation, and then file an unlawful detainer action through the court.  The legal requirements for notice periods may change, so it is always best to consult an attorney before serving any notice.

If the resident engaging in abusive behavior or misconduct has been in the transitional housing program for less than six months, the landlord-tenant procedures described above can be used, or the program operator can expedite the process of removing the resident by using the Transitional Housing Participant Misconduct Act (THPMA).  In order to use the THPMA, the resident must have been given a restatement of the procedures and rights created by the THPMA with the contract she signed when she entered the program.  The Restatement of Transitional Housing Misconduct Act form approved by the Judicial Council of California for this purpose is TH-190, which is available from www.USCourtForms.com. 

The THPMA allows a transitional housing program operator to file for a temporary restraining order (TRO) requiring the resident to stop the abusive behavior or misconduct.  After a hearing on the matter, the TRO can be replaced by an injunction lasting up to one year.  If the resident violates the TRO or injunction, the program operator can file for a modification of the order to remove the resident from the program.

In extreme cases of abuse, the program operator can file for a TRO to immediately remove the resident if there is a risk of imminent serious bodily injury to another resident, an employee, or someone who lives within 100 feet of the program site.  In such situations, if the order is needed before a hearing can be held, the court can issue a TRO requiring the resident to vacate the premises immediately and remain at least 200 feet away from the program.

#8 Confidentiality
January 2007

All information regarding the disability of any resident of or applicant to an emergency shelter or transitional housing program is to be held in strictest confidence and must not be revealed to anyone outside of the housing staff.

Without specific authorization from a resident, a housing provider cannot reveal information about the resident’s disability to any future housing providers who may call to inquire about the person’s tenant history.  The housing provider also needs a resident’s authorization to share information about the resident’s disability with social service providers or caseworkers involved in the resident’s care.  Furthermore, housing providers cannot divulge such information to other residents who ask why certain rules apply in general but not to a particular resident. 

When other housing providers call to inquire about the tenant history of a former resident, the transitional housing provider or emergency shelter operator can share information regarding the length of stay or any opinion a landlord would generally be entitled to discuss regarding a tenant.  However, the housing provider must not mention anything regarding the resident’s disability.  Exceptions can be made only when the resident has given the housing provider permission to discuss the disability and related issues.  This sometimes happens when a resident is looking for permanent housing.  In this situation, the resident may give the housing provider time-limited permission to discuss otherwise confidential issues with prospective landlords, and this can aid in the process of procuring permanent housing.

Applicants to housing programs will sometimes authorize a housing provider to share information gathered during the application process with service providers or caseworkers.  This can be helpful in determining the best support services for an applicant with a disability.  As always, any authorization to release confidential information should be in writing, and release forms should specify the limited time frame to which they apply, the specific information that can be released, and to whom the information can be released.  If it is not possible to get the permission in writing, the staff member to whom the oral permission was granted should make a notation of it in the applicant’s file.

Dealing with curious or disgruntled residents who insist on knowing why another resident is getting “special treatment” poses a thornier issue, and there is no easy answer as to how to handle these questions.  One approach is to explain to the questioner that in certain situations the program/shelter is able to grant accommodations and that any resident needing an accommodation is welcome to request one, but since every resident’s situation is confidential the reasoning for granting an accommodation will not be divulged.  Another approach is to simply state, “Certain laws require us to do this.”  The housing provider must not mention fair housing laws because doing so might imply that the person receiving the accommodation has a disability.

Sometimes a person with a disability chooses to reveal her disability as a way to avoid confrontations with those who feel she is unfairly getting special treatment.  If this is the case, the housing provider should make sure the resident understands that she does not need to reveal such information and that there are other ways to deal with the situation.

There are many other rules regarding confidentiality set forth in HIPAA, the federal health information privacy law, as well as various state laws and funding program requirements.  While the information provided here does not cover those rules, housing providers should check with their funding sources to ascertain any additional confidentiality requirements that apply to their programs.  Information on HIPAA can be found at http://www.hhs.gov/ocr/hipaa/.  

#9 Reasonable Accommodations in Chores and Other Program Requirements
February 2007

A resident with a disability can request, as a reasonable accommodation, to perform alternative chores because his disability makes standard chores difficult for him.  Residents with disabilities can also request changes in other program requirements.  Such requests should be granted, as long as they are reasonable.  A key factor to consider when determining the reasonableness of a requested accommodation is whether granting it would fundamentally alter the nature of the program.

An emergency shelter guest with limited mobility might ask to be allowed to answer the telephones instead of sweeping the floors.  A guest whose mental disability makes interacting with people extremely difficult might request to be allowed to sweep the floor instead of performing a more social task.  As long as the proposed alternative chore is not one the program deems inappropriate for non-staff members, it should be reasonable for the shelter to make the requested accommodation.  If there is no alternative chore that the resident is able to perform, it may be appropriate to waive the requirement to do a chore.

On the other hand, in a transitional housing program some activities may be central to the program’s purpose.  The law does not require that the fundamental nature of the program be altered to accommodate a disability. 

Some transitional housing programs, for example, may include alcoholism rehabilitation as a central component of the program.  If a resident is unwilling to attend treatment sessions and such sessions are an integral part of the housing program, it would not be reasonable to accommodate the resident by waiving the treatment requirement because doing so would fundamentally alter the nature of the program.  (If treatment is not an integral part of the program, however, continued participation in treatment cannot be a requirement for staying in the housing.)

A more complicated question arises when job-readiness is a requirement of a transitional housing program.  If job-readiness is a fundamental aspect of a transitional housing program, then the program is not be required to waive participation in an employment training program for applicants or residents unable to engage in any kind of job-readiness activities.  Generally speaking, however, the most basic and fundamental goal of transitional housing programs is to help homeless people transition to permanent housing, not to achieve “job-readiness.”  If a participant is unable to work because of a disability, allowing him to apply for SSI and search for subsidized permanent housing instead of requiring him to participate in job-readiness activities is a reasonable accommodation. 

A transitional housing program should be very clear about the fundamental nature of its program before refusing to allow a participant with a disability the reasonable accommodation of applying for government benefits and searching for subsidized housing instead of participating in job-readiness activities.  A mere assertion that job-readiness is a fundamental aspect of a transitional housing program does not make it so.  Factors to consider include how the program is advertised, what its mission statement proclaims its main goal to be, what the requirements of its funding sources are, and whether any exceptions to the job-readiness requirement have been made in the past.  Unless there is clear evidence to the contrary, the fundamental goal of most transitional housing programs is to move people into permanent housing.

In analyzing requests for reasonable accommodation with regard to chores and other program participation requirements, it is essential for emergency shelter and transitional housing providers to remember that the purpose of making reasonable accommodations is to provide individuals with disabilities equal access to housing and other program opportunities without changing the fundamental nature of the program.

As always with requests for reasonable accommodations, housing providers can request proof of disability in the form of an SSI award statement or a letter from a doctor or caseworker.  A housing provider might also request that the person get a letter from her doctor or caseworker stating that, due to the nature of the disability, a given task is impossible or extremely difficult and the proposed alternative task is more appropriate in light of the person’s abilities.

#10 "Reasonable" is Determined on a Case-by-Case Basis
March 2007

When a resident, tenant or applicant with a disability makes a request for an accommodation, the shelter or housing provider must judge whether or not the requested accommodation is reasonable based on the unique needs of the individual and whether granting the accommodation would alter the nature of the housing program or unduly burden the program in light of its current capabilities. 

As discussed in Tip #3, there are several factors to consider when determining whether a requested accommodation is reasonable and therefore must be granted: whether the individual making the request has a disability; whether the accommodation is necessary to afford the person an equal opportunity to use and enjoy the dwelling, whether granting the request would fundamentally alter the nature of the program; and whether providing the accommodation would impose an undue financial or administrative burden.

An accommodation is necessary if without it the person would not be able to live in the housing and/or take advantage of the services offered to other residents.  The fact that an accommodation would make life easier for the person making the request or that the person merely wants it is not sufficient to make the accommodation necessary.

If granting the requested accommodation would alter the fundamental nature of the program, the accommodation would not be reasonable.  For example, a request to allow a service animal to live in a program with a “no pets” rule would likely be reasonable, but a request that the housing staff care for the animal would be unreasonable if caring for animals is far outside the scope of the housing staff’s normal duties.

A housing provider is expected to shoulder some financial cost in granting an accommodation, so the fact that a requested accommodation would cost money does not automatically make it unreasonable.  The question of what constitutes an undue financial burden depends on the nature and the cost of an accommodation, the financial resources of the housing provider, the size of the program, and the ability of the provider to recoup the costs.  Because the capabilities of a program can change over time, the analysis of whether requested accommodations would impose an undue financial burden must be conducted on a case-by-case basis.

 In some cases, an accommodation that would be unreasonable for one housing provider might be reasonable for another.  Take the example of an emergency shelter with a small extra room in the back that is scheduled to be demolished in a month for a new construction project.  If a person comes to the shelter and asks for a place to sleep away from the shelter’s main room because of her mental disability, it might be reasonable to grant the requested accommodation by allowing her to sleep in the extra room.  Even though the shelter is able to provide this accommodation for only a limited time and would be unable to provide the accommodation for anyone else requesting it on the same night, there is no reason not to provide the accommodation in this particular instance. 

If later that same night another prospective guest comes to the shelter and makes the same request to sleep away from the main room because of his disability, the shelter can legally deny the request because it no longer has the capacity to provide the accommodation, as the back room is already occupied.  If someone comes to the shelter a month later with the same request after the back room has been demolished, the shelter provider would not be expected to provide the same accommodation, even though it had done so in the past. 

When determining whether a requested accommodation is reasonable, keep in mind that the intent of the fair housing laws is to help people with disabilities overcome the obstacles they face in procuring housing, not to demand the impossible of housing providers.

#11 Physical Accessibility
April 2007

Shelters and transitional housing programs should make every effort to prevent a person with a disability from being turned away.  Even if the program’s physical structure cannot be modified to allow access by an individual with a physical disability, every attempt should be made to operate the program in such a way that, viewed in its entirety, it is readily accessible to and usable by people with physical disabilities. 

All emergency shelters and transitional housing programs must be accessible to people with physical disabilities.  New buildings are subject to strict accessibility requirements.  In existing, older buildings, alterations must be made to the maximum extent feasible.  For example, it would be reasonable for a program to add a ramp for people with mobility impairments, and in many buildings grab-bars could easily be installed in bathrooms.  Removing obstacles from doorways and hallways could widen the passage area enough to allow for the movement of wheelchairs.  Also, Braille lettering could be added to signs to assist people with visual impairments.

If a physical modification of the building would pose an undue administrative or financial burden, the housing provider should find alternative ways to make the program accessible.  There are several alternatives that can provide access when structural modifications are not feasible.  For example, meetings can be moved to accessible rooms, and program services can be provided at an alternate site.  In an emergency shelter, if the sleeping area is wheelchair-accessible but the room where life-skills sessions are held is not accessible, it might be possible to temporarily hold the life-skills sessions in the sleeping area.  In other situations the best solution might be to provide an aide to help a person with a disability access certain features of the program.  The goal is to provide accessibility in the most integrated setting appropriate for the residents. 

If it is impossible to make the program accessible to a person with a disability without causing an undue burden or fundamental alteration of the program, the housing provider should assist the individual in finding and getting to an alternative shelter or transitional housing program.  This approach complies with the spirit of the law even when the letter of the law cannot be met.

A little creativity can go a long way toward making a program accessible to people with physical disabilities even when the building in which the program is located is not.

#12 Proper Care of Personal Property Left Behind
May 2007

After moving out, a former resident with a disability still has a right to request a reasonable accommodation in recovering her personal possessions left behind.  In order to avoid liability, housing providers should be aware of the specific procedures for handling former residents’ personal property and the need to provide reasonable accommodations when appropriate.  While emergency shelter providers are not subject to the same laws regarding personal property left behind, it is recommended that each shelter establish a standard procedure.

 

In order to understand how the concept of reasonable accommodation relates to the recovery of personal property left behind, it is essential to first understand the mandates put forth for landlords by basic landlord-tenant law.  While the law may initially be confusing and compliance may seem burdensome, the following is a standard practice. 

 

When personal property is left behind after a tenant leaves, the landlord prepares a “Notice of Right to Reclaim Abandoned Property” and has it personally delivered to the former tenant or mailed to his last known address.  If there is another address where the landlord believes the former tenant is more likely to receive the notice (for example, his caseworker’s address), a copy of the notice should be sent there as well.  The notice should include the following information:

 

To: (Name of the person believed to be the owner of the property)

 

Address: (forwarding address or last residence)

 

When you vacated the premises at (address of the premises, including apartment number or room number, if any), the following personal property remained: (insert a description of the property).  Unless you pay the reasonable cost of storage and take possession of the property to which you are entitled not later than (insert date not less than 15 days after the notice is personally delivered, or, if mailed, not less than 18 days after notice is deposited in the mail), this property may be disposed of pursuant to Civil Code Section 1988.  Before this date, you may pick the property up at (address where property may be claimed).

 

Dated: (The date mailed or posted)

 

                                                                        (Signature of the landlord)

 

                                                                        (Type or Print the Name of the Landlord)

 

                                                                        (Telephone Number)

 

(Address)

 

 

Housing providers can charge former residents for the reasonable cost of storage.  “Reasonable cost” is not defined by statute.  However, it is understood that reasonable cost will vary depending on the size and type of items to be stored.  If the housing provider does not have a place to store objects, an arrangement must be made to store the property at another location.  Storage costs are not an opportunity for housing providers to acquire extra cash.  Housing providers must mitigate damages by storing any personal property left behind in a reasonable manner that incurs the least expense.

 

If the former resident does not reclaim his personal property within the given time allotment, and the property is reasonably believed to be worth less than $300, the housing provider may keep or dispose of the property as it chooses.  If the property is worth more than $300, the housing provider must hold a public sale at competitive bidding to sell the property in compliance with Civil Code Section 1988. 

 

While the law mandates that tenants be given at least 15 days from the time of being personally served notice of right to reclaim abandoned property, the law does not prohibit setting a longer time period.  It can be difficult for transitional housing programs to find former residents, so it may be helpful to inform all residents upon entrance to a program that they will have 30 days after leaving the program to reclaim any possessions left behind.  Then, if a resident leaves anything behind, the program director can mail him a notice informing him of the number of days remaining to reclaim his possessions.

 

When a former resident’s disability makes it extremely difficult for her to reclaim her possessions within the time normally granted, she may request an extended period of time as a reasonable accommodation.  For example, if a resident vacates her residence and is placed in a psychiatric hospital, she (or her caseworker or a friend or relative on her behalf) may request that the housing provider hold her property for a longer time period.  The housing provider then needs to decide, based on available storage space, the amount and nature of property needing to be stored, and other resources available, whether the requested time period is reasonable.  For example, if the property is nothing more than a small bag of personal items, it would likely be reasonable for the housing provider to store it for an extended time.  However, if the property includes multiple large items such as furniture, a bicycle and several stuffed duffle bags, storing it for an extended time could pose an administrative or even financial burden for the housing provider, particularly if extra space must be procured to keep it.

 

Emergency shelters are not governed by landlord-tenant laws and therefore do not need to follow the above-outlined protocol.  However, it is recommended that shelters establish a procedure to simplify the return of personal property to former residents.  For example, a shelter may post a notice that residents’ belongings will be held for a limited amount of time, for example two weeks or 30 days, before being discarded.

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Disclaimer: The Fair Housing Tip of the Month program is for educational purposes only and does not constitute legal advice. If you have a legal question, please contact MHAS or another attorney of your choice.