Transcript Fair Housing Rights of People With Disabilities

Fair Housing Rights of People
With Disabilities
Overview of the federal and state Fair Housing Acts
The Fair Housing Act (FHA) and
Fair Housing Amendments Act
(FHAA)

The FHA was passed by Congress in 1968
as Title VIII of the Civil Rights Act of 1968.
In 1988, the FHA was amended to include
two additional protected classes: Persons
with disabilities, and families with children
under the age of 18. The FHAA
guarantees people with disabilities equal
opportunity in housing and freedom from
discrimination.
The U.S.
Department of
Housing and Urban
Development
(HUD) enforces the
FHAA.
For more information, visit HUD’s website, Fair Housing
and Equal Opportunity (FHEO) Section at:
http://www.hud.gov/offices/fheo/index.cfm
FHAA “Covered Dwellings”

“Dwelling” means any building or
structure (or portion thereof) which is
occupied (or designed or intended to be
occupied) as a residence for one or more
families. Examples include apartment
complexes, single family homes,
condominiums, group homes, assisted
living and nursing homes, dorm rooms
and retirement communities.
FHAA “Covered Dwellings” –
Exceptions
A single family home is only covered if:
 The owner owns or has an interest in
three (3) or more single-family homes; or
 The home is sold or rented using a real
estate agent, broker or sales person.
 Regardless of the exception,
discrimination in advertising is still
prohibited

FHAA “Covered Dwellings” –
Exceptions, Continued
Rooms or apartment units in a dwelling
designed to occupy four or fewer families
are not covered if:
 The owner maintains one of the units as
his/her personal residence.

FHAA “Covered Dwellings” –
Exceptions, Continued

The FHAA does not apply to “transient
housing,” such as hotels and motels.
However, another federal antidiscrimination law, Title III of the
Americans With Disabilities Act (ADA),
would apply. For more information, see
our guide, “Title III,” available on our
website at www.azdisabilitylaw.org
Who is Protected by the FHAA?
Persons with disabilities. This means:
 A person with a physical or mental
impairment that substantially limits a
major life activity; or
 A person with a record of such an
impairment; or
 A person who is regarded as having an
impairment.

Who is Not Protected by the
FHAA?
Someone with a temporary impairment,
such as a broken leg; or
 Persons who currently use illegal drugs or
controlled substances; or
 Persons who pose a “direct threat” to the
health or safety of others or whose
tenancy results in substantial physical
damage to the property of others.

Prohibited Actions Under the FHAA

Discrimination in Sale or Rental. In
example, a landlord may not refuse to
rent an apartment to a person who uses a
wheelchair. A real estate broker cannot
deny sale of a home to a person because
their child has a mental illness. A
homeowner’s association cannot develop
policies which make it difficult for a
person with a cognitive disability to buy a
condominium.
Prohibited Actions Under the
FHAA, Continued

Representing that a Dwelling is
Unavailable. For instance, an apartment
manager cannot say that an apartment is
not available if one is vacant because they
don’t want to rent to someone with a
service dog. It would be unlawful for an
agent to show only the most expensive
apartment to make a person with a
disability believe that only the most
expensive apartment is available.
Prohibited Actions Under the
FHAA, Continued

Unlawful Selection Criteria and Disability
Inquiries. Housing providers can require that
tenants meet income, rental history, do not have a
drug conviction or criminal history, and other
non-discriminatory criteria. However, they
cannot require different criteria or standards of
persons with disabilities, such as a requirement
that the person be able to live independently, or
deny tenancy because the person’s only income
source is Social Security benefits. They cannot
inquire into the nature or severity of a person’s
disability.
Prohibited Actions Under the
FHAA, Continued

Discrimination in Terms and Conditions or
Provision of Services and Facilities. For
instance, it would be unlawful for a landlord
to require a larger security deposit because
the person uses a wheelchair and the
landlord believes the wheelchair may cause
damage to the carpet or walls, or to refuse
to allow your child access to the pool
because she uses a wheelchair and they
believe it may be an additional insurance
liability.
Prohibited Actions Under the
FHAA, Continued
Discriminatory Advertising, such as:
 “Indoor pets OK, no kids”
 “Single Occupancy Only”
 “No HIV Positive Tenants.”
 All of these statements suggest prohibited
discrimination or conveys a message that
certain tenants are preferred over others.

Prohibited Actions Under the
FHAA, Continued

“Otherwise Making Housing Unavailable.”
This is the catch-all category for actions
that are not specifically prohibited
elsewhere within the FHAA that result in
discrimination. For example, a landlord
cannot evict a tenant because of their
disability, or because he learned the
tenant has AIDS.
Prohibited Actions Under the FHAA

Exclusionary Zoning. Governmental entities
cannot use zoning or land use codes or
ordinances in a discriminatory manner. For
instance, the city Planning and Zoning
Department cannot require that a group
home operator provide notice to neighbors
of the proposed establishment of a group
home in a neighborhood, or refuse to allow
a person to build a wheelchair ramp for
access because of zoning ordinances that
require a certain amount of space between
the street and the property.
Prohibited Actions Under the
FHAA, Continued

Private Restrictive Covenants. Even neutral rules
which do not appear to be illegal may be
discriminatory if they do not allow a person equal
access and use of their dwelling. Example: A
HOA has a rule in its CC&R’s which states ‘no on
street parking allowed after 9p.m. ‘ If the tenant’s
accessible van does not fit under their carport,
they may need to park in the street in front of
their home. If the HOA refuses to waive that
rule as a “reasonable accommodation” for the
tenant’s disability, the HOA is violating the FHAA.
Prohibited Actions Under the
FHAA, Continued

Discrimination in Financing, Brokering and
Residential Real Estate Transactions. For
instance, you cannot be denied a home
equity loan because of your disability if
you meet the non-discriminatory
eligibility criteria. A brokerage firm
cannot refuse to list your property for
sale in their listings because it is a fully
accessible home.
Prohibited Actions Under the
FHAA, Continued

Steering and Blockbusting. “Steering” is the
practice of showing prospective tenants or
buyers to specific areas or neighborhoods,
such as “the handicapped building,” of an
apartment complex. “Blockbusting” refers
to conduct that induces panic selling.
Example: A real estate agent calls an elderly
resident and tells her that a group home for
recovering drug addicts is moving in down
the street, and now is the time to sell your
property before the property value goes
down.
REASONABLE
ACCOMMODATIONS
UNDER THE FHAA
What is a “reasonable
accommodation?”

If there is a neutral rule, policy, practice or service
which burdens a resident with a disability, or, because
of their disability, the tenant cannot comply, the tenant
can request a “reasonable accommodation.” For
instance, this could mean a request for assignment of
an accessible parking space close to one’s apartment,
or to modify a no pet policy to allow a service animal,
or change the rent due from the 1st of the month to
the 3rd, because that is the date the tenant receives
their SSD/SSI payment.
Reasonable Accommodations –
What is “reasonable?”
A reasonable accommodation is one which does not
pose an undue burden on the housing provider, and
does not fundamentally alter the housing provider’s
program. Whether a requested accommodation is
“reasonable” should be determined on a case by case
basis
 If a tenant poses a safety risk or risk of substantial
damage to the property of others, they are not
protected under the FHAA.
 However, the housing provider should determine if
reasonable accommodations can be put in place to
reduce this risk.

DOESN’T MY
APARTMENT HAVE TO BE
ACCESSIBLE?
If the covered dwelling was built for first occupancy on or after
March 13, 1991, it must have seven (7) accessibility features in
place. These include:



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An accessible entrance on an accessible route (unless it is
impractical due to terrain or site characteristics);
Accessible and usable public and common use areas;
Usable doors (generally, a clear width of 32” and low or no
thresh hold);
An accessible route in and through the dwelling;
Accessible light switches, electrical outlets, thermostats and
environmental controls (generally, controls mounted no
higher than 48” and no lower than 15” from floor);
Accessible Features, Continued


Bathrooms with reinforced walls to allow for the
installation of grab bars (this does not mean grab bars
must be installed);
Usable kitchens and bathrooms.
WHAT IF MY
APARTMENT IS NOT
ACCESSIBLE?
What is the difference between “reasonable
accommodations,” and “reasonable modifications?”

A reasonable modification, unlike a reasonable accommodation,
is a change in the physical appearance or structure of your
housing that you need because of your disability (for
example, installing a grab bar in the bathroom). The FHA
obligates your housing provider to allow you to make
reasonable modifications to your home at your own expense.
However, a landlord does not have an affirmative duty to
arrange and pay for modifications, and may require you to
return the dwelling to its original condition upon vacating the
premises.
HOW DO I
REQUEST AN
ACCOMMODATION
OR MODIFICATION?
I need to make my bathroom
accessible
Request for Accommodation

Draft a letter to your landlord
and/or property manager
formally requesting the
accommodation and explain why
it is needed because of your
disability. Give a deadline in
which you expect a written
response, and hand deliver the
letter or send it Certified Mail,
Return Receipt Requested, so
you have proof of making your
request. Always keep a copy for
your own records.
Request for Modification

Draft a letter to your landlord
and/or property manager asking
permission to modify your dwelling
and explaining why you need the
modification because of your
disability, and that you will pay any
costs involved. If you have a
contractor in mind, you may wish to
submit their credentials, such their
license and bond numbers. Again,
give a deadline for response and
hand deliver the letter or send it
Certified Mail, Return Receipt
Requested, so you have proof of
making your request. Always keep a
copy for your own records.
How Do I Make my Request?
The Arizona Fair Housing Act
A.R.S. 41-1491 et seq
 Substantially similar to the federal fair
housing act
 A.R.S. § 41-1491.19 (A)“A person may not
discriminate in the sale or rental or otherwise
make unavailable or deny a dwelling to any
buyer or renter because of a disability …”

The Arizona Fair Housing Act,
Continued

Discrimination includes:

“A refusal to permit, at the expense of the disabled person,
reasonable modifications of existing premises…” (A.R.S. §
41-1491.19 (E)(1))
“A refusal to make reasonable accommodations in rules,
policies, practices or services if the accommodations may be
necessary to afford the person equal opportunity to use and
enjoy a dwelling.” (A.R.S. § 41-1491.19 (E)(2))

Enforcement of the
FHAA –
What Can I do if My
Rights Have Been
Violated?
Franklin D. Roosevelt
File a Complaint with the Arizona
Attorney General’s Office or HUD
In Arizona, if you file a complaint with one
agency, your complaint is automatically
filed with the other.
 Your complaint must be filed within one
year after the discriminatory housing
practice occurred or terminated.

Filing Fair Housing Complaints

Arizona Attorney General’s
Office (Phoenix)

1275 W. Washington,
Phoenix, Arizona 85007
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Arizona Department of
Housing and Urban
Development (HUD)

San Francisco Regional Office
(602) 542-5263 (voice)
600 Harrison Street, 3rd Floor
(602) 542-5002 (TTY)
San Francisco, CA 94107-1387
Arizona Attorney General’s
Office (Tucson)
(800) 347-3739 (toll free)
400 W. Congress Street
(415) 436-6594 (TTY)
Tucson, Arizona 85701
(520) 628- 6500 (voice)
(520) 628-6872 (TTY)
(415) 489-6524 (voice)
Filing a Lawsuit
You need not exhaust administrative
remedies (don’t have to file a complaint
with HUD or the Attorney General’s
office first);
 A lawsuit must be filed no later than two
(2) years from the date of
discrimination.

Garcia v. Brockaway,
CV-05-00156-ECR

A recent case in the 9th circuit – which affects Arizona –
has held that for a private civil action alleging violations
of the FHA, such a lawsuit must be filed “…not later
than 2 years after the occurrence or the termination of
an alleged discriminatory housing practice.” In a failure
to design and construct a covered dwelling according to
FHA guidelines, the statute of limitations is triggered at
the conclusion of the design and construction phase,
“…which occurs on the date the last certificate of
occupancy is issued.” See Garcia v. Brockaway, CV-0500156-ECR
Fair Housing is Your Right
If you have questions or need assistance,
please call the Arizona Center for
Disability Law’s Short Term Assistance
Team (STAT) during our hours of
operation: Monday, Tuesday, Thursday and
Friday from 9:00 a.m. – 1:00 p.m.
 (602) 274-2687 (voice, relay or TTY)
 (800) 927-2260 (Toll Free)
