No Rent, No Disability Accommodation? Not So Fast

July 5, 2016Articles Law360

Scott M. Badami authored the Law360 article, "No Rent, No Disability Accommodation? Not So Fast."

Professional apartment leasing office staff members work each and every day to meet the needs of current residents as well as spending part of their efforts to turn prospects into new residents. Indeed, once they are able to get that initial lease signed, they want to ensure the resident has a good experience so he or she (or they) will want to renew their lease the following year. As a general rule, a happy renter is more likely to want to stay. One of the ways to accomplish this is to engage in what is referred to as the “interactive process” with residents — essentially a dialogue with the goal of ensuring the needs of all are appropriately met.

Now, one of management’s responsibilities is to meet the housing requirements of disabled residents. Residents with a recognized disability can make what is known as a “reasonable accommodation” or “reasonable modification” request at any time. A “reasonable accommodation” is a change to a rule or an alteration of a policy (for example, permitting a service animal in a no pets community) which will assist the disabled resident to obtain the full benefit of his or her housing. A “reasonable modification” is a physical alteration (for example, installing grab bars in a shower or lowering a light switch) to the apartment home or common areas. Although not a requirement, it is recommended that the accommodation or modification requests be submitted in writing. The leasing office team then reviews the request and should respond (also in writing). Again, as noted above, requests for accommodations or modifications can come at any time from a resident during their leasing period.

As such, while the federal Fair Housing Act (as well as similar state, city and/or county laws) mandates that management work with residents (which they are almost always absolutely willing to do), residents also have a number of responsibilities pursuant to the signed residential lease. One of those responsibilities, of course, is to pay the agreed upon monthly rent for the apartment home he or she is living in.

A fact pattern that is starting to happen more often is this: a resident stops paying his or her rent. As with all residents who fail to pay the agreed upon rent, the leasing office sends the appropriate notice and then starts an eviction action pursuant to local law if the rent remains unpaid. Shortly before the case is set to go to court, however, the leasing office receives a reasonable accommodation or reasonable modification request from the resident suggesting for the first time that the resident is disabled and that an accommodation or modification is needed. Indeed, many times the resident files a formal fair housing complaint with the U.S. Department of Housing and Urban Development or a state, city or a county agency claiming that management office has failed to accommodate his or her disability. Not surprisingly, the resident rarely includes that he or she has stopped paying rent in the complaint. The complaint will just report that management initiated an eviction action and that they are discriminating against someone with a disability.

And then a lawyer typically speaks with the investigator assigned to the case. The first (or perhaps second) request received is for management to stop the eviction action while the discrimination case is pending.

Is it possible the accommodation or modification request from the delinquent resident is legitimate? Well, sure. Is it more likely the resident is attempting to use the law to delay and prevent an eviction? Yes. And the fair housing laws are clear that management must not retaliate against a resident because he or she filed a discrimination complaint. And then the conversation turns to whether or not to halt the eviction action, which is always difficult, but necessary. It is important to make it clear that while management will never retaliate against a resident because he or she filed a discrimination complaint, that complaint does not relieve the resident from paying for the apartment home they live in.

So, what should management do if a valued resident submits a reasonable accommodation or reasonable modification request after failing to pay his or her rent? Or if he or she makes the request after filing a formal discrimination complaint? The state of the law is clear: we must review, evaluate and respond to it in the ordinary course. Just because a resident has filed a complaint does not remove the requirement that we must continue to engage in the interactive process with our residents — even if we think the resident is attempting to improperly use the laws against housing discrimination. As a lawyer, my job is to ensure the judge or investigator knows what is really going on. But, for the leasing office team — a resident is a resident and our obligations remain.

Reprinted with permission from Law360. (c) 2016 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.