THE LAW

To understand the Fair Housing Amendments Act, let's look at the original 1968 Fair Housing Act. 1  Title VIII of this statute prohibits discrimination in housing sales, rentals or financing based on: Race, Color, Religion, Sex, National origin.

The 1988 FHAA added handicap 2 and familial status to this list. The FHAA defines "handicap" with respect to a person as:

Physical or mental impairment that substantially limits one or more of such person's major life activities;

A record of having such an impairment ; or

Being regarded as having such an impairment, but such term does not include current illegal use of or addiction to a controlled substance (as defined in section 102 of the Controlled Substances Act, 21U.S.C. 802).3

This is the same definition used in the Rehabilitation Act of 1973. If you use a wheelchair or other mobility device, require a service animal or personal-care attendant, this law protects you from housing discrimination. If you have a record of physical or mental disability or if you are treated as if you have such an impairment, you are covered also. People who currently illegally use drugs are NOT covered.

PROHIBITED ACTIONS

Prohibited actions are activities specifically forbidden under the FHAA. For example, refusing to sell or rent to a person because he or she has a disability is against the law. Also, a landlord may not have one lease for people with disabilities and another for other applicants. These actions are illegal.

REASONABLE ACCOMMODATION

Reasonable accommodation was first established under Section 504 of the Rehabilitation Act. The fair housing regulation makes it unlawful for a landlord or housing provider to refuse to make reasonable changes in rules, policies, services or practices, when these accommodations are necessary to allow a person with a disability an equal opportunity to use and enjoy the housing. For example, an apartment building provides parking for tenants on a first-come, first-served basis. It would be considered a reasonable accommodation to require the landlord to change this policy to provide reserved parking spaces, close to an accessible route, for tenants with mobility impairments.

ACCESSIBILITY REQUIREMENTS FOR EXISTING AND NEW STRUCTURES

Accessibility requirements for existing and new structures are the basic designs that allow people with disabilities access to and use of housing. People with disabilities understand the need to make modifications to their living environments. These modifications are often specially tailored to the individuals needs; thus, the law requires that landlords allow tenants to make reasonable changes or modifications to their units. These modifications may be made to the interior of the tenant's unit and to common areas where they are necessary. The tenant must pay the cost for these modifications unless the housing provider receives funding from the federal government.

Also, the law allows the landlord to set the following conditions before giving permission for modification:

Under no circumstances can the landlord require people with disabilities to pay an additional security deposit or to sign a different lease. In cases where extensive modifications are made, the landlord may require the tenant to put enough money into an escrow account to cover the cost of restoring the interior premises to their original condition. The amount and terms of such an account are determined on a case-by-case basis. An escrow account is not meant to be used to discourage anyone from renting or modifying an apartment to meet his or her needs.

Examples of common modifications:

• Installing grab bars in the bathroom;
• Lowering or removing kitchen cabinets;
• Installing a visual door bell or fire alarm;
• Removing a bathtub to install a roll-in shower; or
• Widening a doorway to the building laundry room.

The tenant agrees to :

• restore the unit to its prior condition,
• except for ordinary wear and tear;
• provide a reasonable description of the
• proposed modifications; and
• provide reasonable assurances that the work will be
• done in a workmanlike manner and that all
• building permits will be obtained.

There are three classifications of modifications:

1. Those that will not have to be restored.

For example, the doorway to a laundry room, widened to allow access, would not have to be restored since the widened doorway would not affect the use of the laundry room by other tenants.

2. Those that will need to be restored to their original condition, but do not require the establishment of an escrow account.

For example, an under sink cabinet that had been removed would need to be replaced because the next tenant could want the storage space. Since the cost to replace the cabinet would not be excessive, an escrow account probably would not be needed.

3. Those that will need to be restored and are relatively expensive and, therefore, may require an escrow account.

For example, a roll-in shower would have to be removed and a bathtub reinstalled. Because of the cost associated with restoring the bathroom to its original condition, an escrow account may be required.

NEW CONSTRUCTION

Newly Constructed (ready for first occupancy after March 13, 1991) multifamily dwellings with four or more units must provide basic accessibility for people with disabilities. The law requires each building to have at least one building entrance on an accessible route. Public areas (such as a lobby) and common-use areas (such as a swimming pool) must be readily accessible to and usable by people with disabilities. In addition, all doors within the building must be wide enough to allow a person using a wheelchair in or out. Each unit in the building should have:

An accessible route into and through it;

Light switches, thermostats and other controls located low enough for a person using a wheelchair to reach them;

Sufficient reinforcement (studs) in the bathroom walls to allow a tenant to install grab bars where needed; and

Kitchens and bathrooms designed so that a wheelchair user can maneuver within the space.

For buildings without elevators, only the ground floor units need to provide these features. In buildings with elevators, every unit must include these adaptive design features.

A NOTE ABOUT RENOVATIONS

The FHAA does not require buildings occupied before March 13, 1991, to make public and common-use areas accessible during renovations. However, Title III of the Americans with Disabilities Act (ADA) does require removal of barriers in areas of public accommodation - such as the rental or sales office - if it is readily achievable.

ENFORCEMENT AND COMPLIANCE

Enforcement and compliance are the processes HUD and people who believe they have been discriminated against use to ensure that the requirements of the FHAA are complied with.

The FHAA is a civil rights law. As with all civil rights laws, its enforcement and compliance require the involvement of individuals who are willing to stand up for their rights and call attention to possible violations. In other words, unless individuals who are discriminated against complain, progress in housing will depend on voluntary compliance by landlords or action by the federal government through HUD.

The FHAA covers both privately owned housing and housing subsidized by federal funds. Property owners, landlords, housing managers, real estate agents, brokerage service agencies and banks have to comply with the FHAA. As you can see, there are literally thousands of housing developments and providers that must comply. Without the help of people who are affected, the federal government cannot possibly supervise all of the covered entities.

THE COMPLAINT PROCESS

If you believe you have been denied housing because of your disability, you may file an administrative complaint with HUD or a lawsuit in state or federal court.

Administrative complaints must be made within one year of the date on which the discriminatory act occurred or terminated.

Example 1:

You have a visual impairment and have asked to be shown an apartment. The manager tells you that there are currently none available. You asked to be placed on a waiting list for the first available unit and she agrees to notify you. The next week, you learn that an apartment was available at the time of your visit and that it was rented to the next applicant. This is a clear case of discrimination, and you can file a complaint up to one year after the day you asked to tour the unit.

Example 2:

You have had an ongoing complaint with the management of your residence over accessible parking. Although you have worked diligently to have a space set aside for your use in a complex with a first-come, first-served policy, the management has steadfastly refused to accommodate you. A complaint can be filed at any time from the first day the problem started throughout your efforts at resolution if the act was discriminatory.

1  Title VIII of the Civil Rights of 1968, 42 U.S.C. 3601 et seq.

2  While federal laws still use the obsolete term "handicap," the preferred term is disability.

3  Fair Housing Amendments Act of 1988, U.S.C. 3602 802.

Some examples of less obvious discrimination:

• "You can't live here because there is no one to take care of you."
• "I'd like to rent to you, but my insurance will go up."
• "I can't rent to you because you are deaf and can't hear when the fire alarm goes off."
• "I can't sell you one of the homes we're building because you will require too many expensive modifications."
• "We have a `no pets' rule, and that includes your guide dog."
• "Since you were in an institution, you won't be safe living by yourself."
• "Since you used to be a drug addict, I'm afraid you'll be a danger to other tenants."
• "You won't be able to get out of your apartment because of your wheelchair."
• "We have apartments set aside for people with disabilities, but they're full.

DISABILITY AND HOUSING DISCRIMINATION SENSORY IMPAIRMENT

Sometimes, recognizing discrimination is easy. The rental office might tell you "You can't live here because you have a disability."

But more often it is subtle and difficult to recognize.