Ask a Lawyer: Reasonable Accommodations
By: Steven M. Williams
Question:
We recently installed a swing set in our community. A resident who has a disabled son told me that her son cannot use the swings because there is no harness to assist him in getting into them. As an accommodation for her son’s disability, the resident has asked if she can put an accessible swing set in her backyard. Our Community Rules do not allow for this. If I make our swing set accessible by adding the harness that she showed me, will I have met the fair housing requirement to accommodate the resident’s son’s disability? Or, do I have to allow her to put a swing set in her yard?
Answer:
If the resident’s request is because she simply does not want to go to the public swing set, then I think you can safely retrofit your own swing set and deny her request. Mere convenience does not require an accommodation. However, if the location of your swing set is not accessible to the resident’s son, for example, due to the geography/grade if he is in a wheelchair, then you may be required to accommodate the request and allow the resident to install a swing set in her back yard.
Question:
One of my residents has asked that I grant her a reserved handicapped parking spot due to her disability. We do not have any reserved spots, and in order to do this, I would have to install a curb cut and add paint lines to delineate the spot. I am happy to do this; but, since this is a modification to my property, I can charge her the costs I incur, right?
Answer:
You probably cannot pass these costs on to your resident. The granting of a reserved parking spot is an accommodation, not a modification. Under the fair housing rules, landlords must pay or absorb the costs of reasonable accommodations requested due to a disability. The costs of the line painting and curb cuts, although physical changes to your property, constitute the costs of providing the accommodation. While this position is not held by all courts, a number of courts, and HUD, have accepted this position. Unless a court in the jurisdiction in which your property is located has rejected this position, you are well-advised to follow it.
Question:
I have many residents whose sole income is social security disability. Some of them have asked for an accommodation in the rent payment date since they do not receive their disability payments by the first of the month, when rent is due. I am happy to agree to these requests. But, do I have to offer the same thing to all of my residents who receive social security disability payments?
Answer:
As lawyers sometimes need to say, it depends. Generally, you are only obligated to offer an accommodation for disabled residents when they ask for one, or when you are on notice that one is being requested. In fact, it can be a violation of the fair housing laws to presume a disabled resident needs an accommodation and unilaterally offer it. For those residents who always pay their rent on time, you do not have to do anything. Clearly, they have the ability to pay on time, and they have not asked for a different rent payment date. However, if you have residents who receive disability income and are routinely late with their payments, you may want to discuss with them whether they would like you to adjust their rent payment date. While these residents may have not asked for an accommodation, an argument could be made that their routine late payments put you on notice that an accommodation request is being made. When it comes to fair housing compliance, it is always better to be safe than sorry.
