Enforcing the Fair Housing Act to Obtain
Assistive Technology
James R. Sheldon, Jr., Supervising Attorney National Assistive Technology Advocacy
Project
© 2001 by Neighborhood Legal Services, Inc., all
rights reserved
The Fair Housing Amendments Act of 1988 expanded greatly the protections available to persons with disabilities who believe they have been subjected to unlawful discrimination in their attempt to obtain suitable housing for rent or purchase. Although the protections of the Act extend to several other classes of individuals (see footnote 1, below), the focus of this training outline is on persons with disabilities. Additionally, the focus of this outline is on rental housing rather than housing for sale. Finally, these materials focus on the use of the Act to ensure that persons with disabilities either obtain or receive the full benefits from assistive technology that will allow them full use of the rental unit and other amenities.
I. Where to Find the Law
A. Statutes: Fair Housing Act, 42 U.S.C. §§ 3601-3700
B. Regulations: 24 C.F.R. §§ 100.1 et seq.
II. Basic Protections of the Act for Person with Disabilities(1)
A. It is illegal to discriminate, based on disability, in the sale or rental of housing or to otherwise make housing unavailable because of the disability of the buyer or renter, an intended resident or anyone associated with that person. 42 U.S.C. § 3604(f).
B. Who is protected?
1. The Act uses the term "person with a handicap" to refer to the class of persons protected by its provision. However, because "person with a disability" has become the preferred term, we will use the terms interchangeably.
2. "Person with a handicap" defined:
a. This is an individual who has "a physical or mental impairment which substantially limits one or more of such person's major life activities, a record of having such an impairment, [or is] being regarded as having such an impairment." 42 U.S.C. § 3602(h); 24 C.F.R. § 100.201.
b. This is almost identical to the definition of disability in the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act. For this reason, much of the ADA and section 504 case law will apply to claims under the FHAA. Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2nd Cir. 1995).
C. What kinds of rental units are covered or not covered by the Act?
1. The general rule is that the Act applies to all dwellings unless specifically exempted from coverage. 42 U.S.C. § 3603(a).
2. The following rental dwellings are specifically exempted from coverage [id. § 3603(b); 24 C.F.R. § 100.10(b)]:
a. Rental units for no more than four families, when one of the units is occupied by the owner.
b. Any single-family house rented by an owner, unless:
(1) The private owner owns more than three such single-family houses, or
(2) Uses a real estate broker or rental agent.
3. Additional exemptions from coverage are listed in 24 C.F.R § 100.10(a), including religious organizations and private clubs which, under certain circumstances, can lawfully limit rentals or give rental preferences to members of the religion or private club.
D. A summary of prohibited activity, as it affects persons with disabilities:
1. Any outright refusal to rent, based on disability, is prohibited. 42 U.S.C. § 3604(f)(1); 24 C.F.R. § 100.60(a).
a. Many landlords have no objection to the tenant per se, but do not want to deal with what comes along with the disability, such as the use of a guide dog, a wheelchair, the need for personal assistance services, or the need for modifications based on the disability.
b. So long as one can connect the refusal to rent to the disability, the discriminatory act is probably covered by the Act.
2. The Act prohibits discriminatory advertising or falsely representing that an apartment or rental unit is unavailable. 42 U.S.C. § 3604(d).
3. Unlawful discrimination, based on disability, includes:
a. Refusal to permit necessary modifications to a rental unit at the tenant's expense;
b. Refusal to make reasonable accommodations in rules, policies, practices, or services necessary to afford an individual with a disability an equal opportunity to live in a dwelling;
c. Failure of newly constructed multifamily dwellings to have accessible common areas and to have adaptable units (i.e., ones that are easily made accessible). Id. § 3604(f)(3).
4. It is unlawful to evict a tenant because of the disability of the tenant's guest. 24 C.F.R. § 100.60(b)(5).
III. Reasonable Modifications to the Rental Unit, the Common Areas of a Multi-Unit Complex, and Other Multi-Unit Amenities
In order to use and enjoy a rental apartment, the common areas of a multi-unit complex, and other multi-unit amenities, some modifications may need to be made based on the disability. As the reader will see in this section and the one that follows, only "reasonable" modifications are envisioned by the Act. Also, some modifications will be the obligation of the landlord and some the obligation of the tenant under the Act. Finally, even when the Act places no obligation on the landlord to make modifications, other federal, state or local laws may give the tenant added protections.
A. Modifications to the rental unit
1. The landlord must allow the tenant to make reasonable modifications "if such modifications may be necessary to afford such person full enjoyment of the premises ..." 42 U.S.C. § 3604(f)(3)(A).
2. Under the Act, the tenant rather than the landlord is responsible to pay for any modifications. Id.
3. The tenant is required to restore the premises to their original condition, upon moving from the premises, if it is reasonable to do so. The tenant is not responsible for normal wear and tear. Id.
B. Reasonable modifications to rules, policies, practices and services
1. A landlord must make "reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. 3604(f)(3)(B).
2. The landlord may not limit the "use of privileges, services or facilities associated with a dwelling because of ... [the disability of a] tenant or a person associated with him or her." 24 C.F.R. § 100.65(b)(4).
IV. Special Accessibility and Adaptability Mandates for New Construction of Multifamily Dwellings
A. What dwellings are covered?
1. Any multifamily dwellings designed and constructed for first occupancy after March 13, 1991. 42 U.S.C. § 3604(f)(3)(C).
2. A "covered multifamily dwelling" means:
a. Buildings consisting of four or more units if such buildings have one or more elevators; and
b. Ground floor units in other buildings consisting of four or more units.
B. What is required in covered dwellings?
1. The public use and common use portions of such dwellings must be readily accessible to and usable by persons with disabilities.
2. All doors designed to allow passage into and within all premises of such dwellings must be sufficiently wide to allow passage by persons with disabilities in wheelchairs.
3. All premises within such dwellings must contain the following features of adaptive design(2):
a. An accessible route into and through the dwelling;
b. Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
c. Reinforcements in bathroom walls to allow later installation of grab bars; and
d. Usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. Id. § 3604(f)(3)(C)(iii).
V. Limits to Application of the Act
A. The Act's provisions do not limit the rights of a state or its political subdivisions to enact laws that afford more rights to tenants than those required by the Act. Id. § 3604(f)(8).
B. The Act does not require that a dwelling be made available "to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." Id. § 3604(f)(9).
VI. Enforcement of the Act
A. Administrative complaints
1. Any aggrieved person may file a complaint with the U.S. Department of Housing and Urban Development (HUD) within one year after the alleged discrimination occurs or ceases. Id. § 3610(a)(1)(A)(i).
2. HUD has 100 days within which to investigate and attempt conciliation between the parties. Id. § 3610(b).
a. NOTE: Whenever a complaint alleges a discriminatory housing practice that is within the jurisdiction of a State or local public agency, and as to which such agency has been certified by HUD, HUD must refer the complaint to that certified agency before taking any action with respect to the complaint. Id. § 3610(f).
3. If HUD does not find reasonable cause, the complaint is dismissed. Id. § 3610(g)(3).
4. If HUD finds reasonable cause, in the case of a tenant complaint, the agency must start prosecution with service of a charge upon the respondent, referring the case to the U.S. Department of Justice (DOJ) for prosecution. Id. § 3610(g)(2)(A).
a. Either party to the proceeding can elect to either proceed by way of civil action or proceed through an administrative law judge (ALJ) hearing. The complaining party has a right to intervene in the ALJ proceeding. Id. § 3612(a).
b. The ALJ has extensive authority to order appropriate relief. Id. § 3612(g)(3).
c. The secretary of HUD has 30 days within which to review the ALJ's decision. If the Secretary does not review the decision within the 30 days the decision, as issued, becomes final. Id. § 3612(h).
d. An aggrieved party may, within 30 days, appeal from the ALJ's final decision in an appropriate U.S. Court of Appeals. § 3612(i).
B. Filing an action in Federal Court
1. An aggrieved party, under the Act, has a right to bring an action in federal court. Id. § 3613(a).
2. There is no exhaustion of administrative remedies requirement. An individual can go right into federal court without first filing a complaint with HUD. Id.
3. Even if the HUD complaint is dismissed upon a finding of no reasonable cause, the complaining party is still permitted to file an action in federal court. Id.
4. The statute of limitations for a federal court action is two years. Id. § 3613(a)(1)(A). In calculating this time period, "[t]he computation ... shall not include any time during which an administrative proceeding under [the Act] was pending with respect to a complaint or charge under [the Act] based upon such discriminatory housing practice." Id. § 3613(a)(1)(B).5. The court has broad powers to grant monetary relief, including actual and punitive damages. The court can also order the defendant to take certain actions to eliminate the discrimination, "including an order enjoining the defendant from engaging in [a] practice or ordering such affirmative action as may be appropriate." The court's affirmative orders could include, for example, an order to make structural changes to the rental unit or other areas, as required by the Act. Id. § 3613(c).
6. A prevailing party may be awarded, at the court's discretion, reasonable attorney's fees. Id. § 3614(c).
1. NOTE: The Fair Housing Amendments Act also protects against discrimination based on race, color, religion, sex, familial status, or national origin. See 42 U.S.C. § 3604(a); 24 C.F.R. § 100.5. A person with a disability may be a member of one or more additional protected classes that could offer protections under the Act. The attorney or advocate should always consider all potential claims under the Act, as the disability-related claim may not always be the strongest one.
2. The listed requirements are met if there is compliance with the appropriate requirements of the American National Standard for buildings and facilities providing accessibility and usability for persons with disabilities (commonly cited as "ANSI A117.1"). 42 U.S.C. § 3604(f)(4).
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