Five Rules for Handling Reasonable Accommodation and Modification Requests
New York City and New York State have recently bolstered efforts to prevent discrimination. When Carmelyn Malalis was appointed to lead the New York City Commission on Human Rights in November 2014, the agency had come under scrutiny for what Public Advocate Letitia James called a “moribund agency culture” and a track record of “lax enforcement.” Now, Malalis can point to evidence of a revamped office, from a growing number of investigations to higher penalties to enforcement efforts on a number of new fronts. Malalis has attributed the turnaround to improved collaboration between the two major bureaus of her office: law enforcement and community outreach. The commission enforces the city’s sweeping civil rights legislation, which prohibits a long and growing list of discriminatory practices.
In 2015, Malalis’ first full calendar year on the job, the commission opened 824 discrimination investigations, nearly 200 more than the 628 cases opened the year before. The commission more than doubled the average dollar amount collected for discrimination victims, to $21,806 in 2015, up from $9,725 in 2014. Additionally, the commission ramped up investigations of discrimination by owners and put new resources into disability access and gender identity protection.
At the state level, the state Division of Human Rights and the Department of State are pursuing new regulations to strengthen housing enforcement efforts in the state. In February, Gov. Cuomo announced a fair housing enforcement program to be comprised of three housing agencies partnered with the state. Under the program, there will be “testers,” or people representing different economic, gender, and racial backgrounds, going undercover as potential renters to check for discrimination. The testers will also include people representing potential renters with disabilities. The way that owners treat the testers will be recorded and analyzed by these fair housing agencies and the state.
With the increased number of discrimination investigations, it’s important for owners to know how to handle reasonable accommodation and modification requests by disabled tenants. Disputes over requests for disability-related accommodations and modifications remain at the top of the fair housing complaint pile. Often, it boils down to clashing opinions over the reasonableness of the request. A tenant may believe that his request is perfectly reasonable, since it’s what he thinks would best meet his disability-related needs. But you may have a different opinion—maybe because you wonder whether it’s really needed or it’s worth the disruption or expense it entails.
Federal law and the NYC Human Rights Law ban housing discrimination based on disability, and unlawful practices under these laws include refusing to provide a reasonable accommodation or modification for a person with a disability. A reasonable modification can be structural such as installing a ramp at the building entrance to provide wheelchair access or installing grab bars in a bathroom. A reasonable accommodation can involve a policy change such as permitting a tenant who is blind or has a psychological disability to have a guide dog or companion animal, despite a building’s “no pets” policy.
And the NYC Human Rights Law also requires the owner to pay for a modification if it is deemed reasonable – that is, architecturally and financially feasible.
But there are limits to these obligations. For one thing, such requests must be made by or on behalf of an individual with a disability—that is, a physical or mental impairment that substantially limits one or more major life activities. For another, the requested accommodation or modification must be “necessary,” which means that there must be an identifiable connection between the individual’s disability and the requested accommodation or modification.
Furthermore, the requested accommodation or modification must be “reasonable.” When dealing with the reasonableness of a requested modification, it involves a balancing act—weighing the burden that the requested modification would impose on the building against the benefits to be gained by the tenant.
Most commonly, you’ll be dealing with requests for reasonable accommodations. According to federal guidelines, requests for accommodations may be denied if providing the accommodation is not reasonable—that is, it would impose an undue financial and administrative burden or it would fundamentally alter the nature of the building’s operations.
To determine whether the requested accommodation imposes an undue financial and administrative burden, you’ll have to review—on a case-by-case basis—various factors, including the cost of the accommodation, your financial resources, the benefits that the accommodation would provide, and the availability of alternatives that would effectively meet the resident’s disability-related needs, according to the guidelines.
The law also considers accommodation requests to be unreasonable when they fundamentally alter the essential nature of the building’s operations. As an example, the guidelines state that an owner would not be required to grant a request from a resident with a mobility impairment to take him to the store and help him shop for groceries. If you do not provide transportation or shopping services for your tenants, then granting the request would require a fundamental change in the nature of your operations.
FOLLOW FIVE RULES
Rule #1: Don’t ‘Just Say No’
When an applicant or tenant asks for an exception to your rules or policies, your first impulse may be to just say no. You may be skeptical of requests for special treatment for fear of opening the floodgates to other tenants wanting the same thing. Or the circumstances may make you suspicious, particularly if the tenant doesn’t appear to be disabled or makes what you believe to be an unwarranted or costly request. Or the timing may be off if, for example, the request comes only after the tenant is caught breaking the rules.
But you should NOT outright reject any disability accommodation or modification request just because it’s against the owner or management’s rental policy or would cost the owner money out of pocket (or break the budget). ALL disability accommodation and modification requests MUST be evaluated on a case-by-case basis.
Rule #2: Find Out What the Resident Wants
Listen carefully whenever anyone says she wants or needs something special because of a disability. Even a verbal request or mention of something needed is sufficient to require that management take some kind of action.
That’s because the law doesn’t require requests for reasonable accommodation to be made in a particular manner or at a particular time, according to federal guidelines. Under the Fair Housing Act, a resident or applicant makes a reasonable accommodation request whenever she makes it clear to the housing provider that she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability. The person making the request doesn’t have to mention fair housing law or use the words “reasonable accommodation.”
You can—but don’t have to—adopt formal procedures for reasonable accommodation requests. It can be helpful not only to prevent misunderstandings about the nature of the request, but also to provide records to show that the request received proper consideration in the event of later disputes. You can ask the resident to put the request in writing, but you can’t deny or ignore a request simply because the resident makes the request verbally or won’t use your preferred forms or procedures for making such requests.
Get more information, if needed, to determine whether the requested accommodation may be necessary because of a disability. If the disability is not apparent, you may ask how the proposed accommodation or modification is related to assisting and coping with the disability. Don’t ask overly intrusive, detailed, or invasive questions or insist that only a medical doctor provide an explanation as to why the accommodation or modification is needed, says fair housing attorney Robin Hein. And don’t ask questions about the extent of the disability if it’s apparent or obvious, he warns.
Rule #3: Determine Whether Requested Accommodation Imposes Undue Burden or Fundamentally Alters Your Operations
You don’t have to grant unreasonable accommodation or modification requests, but you can’t rely on your subjective beliefs or go by what you’ve done in the past to decide whether a particular request is unreasonable. Instead, you have to look at all the facts and circumstances and consider whether the request meets the legal standards for being unreasonable—that is, imposes an undue financial and administrative burden or fundamentally alters the nature of the building’s operations.
A requested accommodation isn’t unreasonable simply because it requires you to pay some costs, such as repainting lines or providing signage to designate an assigned, handicapped parking space. On the other hand, you may deny requests as unreasonable when providing the requested accommodation would be so costly that it imposes an undue financial and administrative burden.
The law also considers requests for accommodations to be unreasonable when they fundamentally alter the building’s operations. When the resident wants something that’s so far outside your normal operations or amounts to a violation of law, the request may be denied as unreasonable.
Rule #4: Consider Alternatives If Request Is Unreasonable
If the requested accommodation is unreasonable, federal guidelines say you should engage in an “interactive process” with the resident to discuss whether there’s a reasonable alternative accommodation that would effectively address the resident’s disability needs.
It’s good to offer an alternative to show that you attempted reach a compromise by balancing the tenant’s disability-related needs with the needs of the building. In effect, it shows that you’ve offered to give the resident something to address his disability-related needs—even if it’s not exactly what he requested in the first place.
In one case, in September 2014, an owner persuaded a New York judge that it offered workable alternatives to unreasonable requests from disabled tenants related to its planned elevator renovation. The tenants, who lived on upper floors, had significant health problems, which made going up and down stairs very difficult. When they learned that the building’s only elevator would be shut down for months during renovations, the tenants sued for unlawfully denying their accommodation requests and asked for a court order to prevent the elevator shutdown.
Attempts to negotiate a reasonable accommodation were unsuccessful. The owner offered to move the residents to either a unit of their choice on the first floor or a larger unit in a building less than a mile away, at no additional cost. The owner also promised that the temporary move wouldn’t affect the rent-stabilized status of their present units.
The residents wanted to stay in their units. Among other things, they wanted the owner pay for a “para-transport service” to come to their units once a week and carry them up and down the stairs in a wheelchair or other specialized chair; the estimated cost of each round-trip was $525 per person.
After a hearing, the court refused to issue the court order, ruling that the owner’s offer to move the tenant with the mobility impairment to the first-floor unit in the same building was reasonable. The owner showed that his preferred accommodation would cause undue hardship because of the risk of injury—and significant liability—if there were an accident while carrying him up and down the stairs.
The same was true for the other tenant. It was difficult for him to leave his unit due to Alzheimer’s disease, but the owner offered him a two-bedroom unit to accommodate his live-in aide. Although courts generally defer to the tenant’s view of his own needs in determining what a reasonable accommodation is, the court said that having him carried up and downstairs was simply not a viable option because it presented too great a hardship to the owner. Based on the possibility of injury to the resident or the people carrying him, along with the significant cost of the service, the court didn’t think his requested accommodation was reasonable [Picaro v. Pelham 1135 LLC, September 2014].
Rule #5: Watch Out for Potential Retaliation Claims
Watch how you treat tenants after they’ve made a reasonable accommodation request. The law bans retaliation against anyone engaged in a protected activity, including filing a discrimination claim or making a request for a reasonable accommodation or modification. Retaliation is a separate violation of fair housing law, so it’s unlawful to retaliate against someone simply for making a disability-related request—even if she isn’t legally entitled to receive the requested accommodation or modification.
Be mindful of potential retaliation claims when pursuing eviction proceedings against residents for violating the lease or breaking the rules. They may try to derail or delay the eviction proceedings by accusing you of unlawfully denying their requests to overlook the violation as a reasonable accommodation—and tack on a retaliation claim to call your motives into question. You don’t have to tolerate a resident’s bad behavior, as long as you can prove that you had legitimate, nondiscriminatory reasons for taking action against him—which have nothing to do with his disability-related requests.
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