NAVNEET GREWAL NATIONAL HOUSING LAW PROJECT

LAAC FRESNO TRAVELING TRAININGNOVEMBER 17, 2009

Housing Rights for Tenants with Disabilities

www.nhlp.org

Goals

Identify when a reasonable accommodation may be requested

How to request a reasonable accommodation Enforcement Options

Statistics

41% of families living in federally assisted housing have at least one family member who is disabled.

41,101,667 people with disabilities 2007 American Community Survey:

Overview and Rules

Obstacles to Obtaining Housing

Poor credit history related to disabilityLack of accessible units Housing provider has a no-pets policy Limited mobility prevents applicant from

coming to housing authority for interview Inability to find an accessible unit within a

voucher payment standardInability find a unit within the time from

allotted by the housing authority

Obstacles to Maintaining Housing

Missing Rent PaymentsHoarding/ClutterThreatening behavior towards others Requesting a live-in aide Denials of portabilityDenials of transfers Missing recertification appointments Missing housing inspections

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If a tenant has an obstacle to obtaining or maintaining housing because of a disability, the tenant can request a reasonable accommodation.

A reasonable accommodation is a change in a rule, policy, practice, or service that may be necessary to allow a person with a disability the equal opportunity to use and enjoy a dwelling.

How to Access Housing

FHA: 42 U.S.C. § § 3604, et seqSection 504 of Rehabilitation Act: 29 U.S.C. § 794ADA 42 U.S.C. §§ 12131 et seq (and

ADAAA)

CA Laws: FEHA, Unruh, CDPA, CA Gov’t Code

§11135

Sources of Law

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When a qualified person with a disability makes a request that is:

NECESSARY + REASONABLE = MUST GRANT ACCOMMODATION

When Must a Housing Provider Grant a Request?

Qualified Person with a Disability (Federal)10

Any person who: has a physical or mental impairment that

substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment

A current illegal user of a controlled substance is not disabled for the purposes of reasonable accommodation. However, an individual with a disability can include someone who has successfully completed a drug rehabilitation program, is currently in such a program, or is mistakenly regarded as engaging in illegal drug use.

Necessary

Frees the tenant from a rule, policy, or practice that interferes with the person’s right to use and enjoy the dwelling.

Enhances the person’s quality of life by ameliorating the effects of the disability.

Enables the tenant to satisfy the essential requirements of tenancy.

ReasonableReasonable12

No undue financial or administrative burden

Can not fundamentally alter the nature of the program.

Considerations for undue financial burden: benefit to tenant, costs, financial resources, and availability of less expensive accommodation.

Will often cause at least some financial burden.

Fundamental Alteration: the request would require the provider to change the nature of the services it provides

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An accommodation may be denied if the tenant poses a direct threat to the health and safety of others. This must be objective, not subjective.

Must look at nature, duration, severity of risk of injury, probability injury will occur, any accommodations that could eliminate the direct threat.

Direct Threat

Making a Request

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Disability: State that the tenant has a disability. It does NOT need to say the name of the disability and provider can not ask for medical records.

Accommodation: The request should state what accommodation the tenant is looking for.

Nexus: The request should state how the accommodation is related to the person’s disability and how it will help them access, utilize, or remain in the housing program.

Making a Request

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Requests may be oral or written.The reasonable accommodation process

begins once a tenant tells a housing provider that they are disabled and need something changed in order to accommodate that disability.

Written requests may be preferableCan be made at ANY TIME.

Making a Request

Denial Denial 17

If the housing provider finds that the requested accommodation is not reasonable, it’s obligation does not end.

The provider should engage in an interactive process and try to determine with the tenant if another accommodation is feasible.

If no alternative accommodation is agreed to, treated as a denial of the original reasonable accommodation request.

For federally assisted housing – right to request a Section 504 hearing, which often substitutes as the interactive process.

Enforcement Methods

Informal Advocacy

Engaging with the housing provider Written requestFollow-up Interactive processPHA hearing

Answer to UD

A reasonable accommodation may be requested as an answer to an unlawful detainer action

The request may be made even after the action has been filed, until the “proverbial last minute.”

Note that raising a reasonable accommodation issue in a UD may prevent the issue from being raised affirmatively as a fair housing claim.

HUD/DFEH Complaint

One year statute of limitation Can be filed quickly – online, by mail, or by

phoneDuty to conciliate If conciliation fails and HUD finds cause, may

proceed to ALJ, or through DOJ in federal court Often difficult to get a finding of cause Will often push the housing provider to settle Compensatory damages, injunctive or

equitable relief, and civil penalties in the public interest between $11,000 to $55,000.

Affirmative Litigation

Two Year Statute of LimitationsCan be filed concurrently with HUD/DFEH

complaintState or Federal Court Compensatory damages, injunctive or

equitable relief, and punitive damages, attorney fees

Writ of Mandamus

A court may issue a writ of mandate to any “to any inferior tribunal, corporation, board, or person”

Compels performance, stays action, or requires the lower authority to show cause why it is not in compliance with the law in question

90 days from date that administrative decision becomes final

Summary

If a tenant with disabilities is having difficulty accessing or maintaining housing, advocates should consider whether a reasonable accommodation request is appropriate

If a request is denied, there are several options for enforcement of a tenant’s fair housing rights to pursue

FOR TECHNICAL ASSISTANCE, TRAININGS, AND ONLINE RESOURCES:

NAVNEET GREWAL STAFF ATTORNEY

NATIONAL HOUSING LAW PROJECTNGREWAL@NHLP.ORG

(510)251-9400 EXT. 3102

HTTP://NHLP.ORG/RESOURCECENTER?TID=63