Fair Housing Rights of People With Disabilities

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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 by
(FHAA)
The FHA was passed
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 anti-discrimination
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

 A reasonable accommodation is one which
What
ispose
“reasonable?”
does not
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:
 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
 “A

includes:

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
In Arizona, if you file a complaint
Office
or HUD
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
Arizona Department of




General’s Office
(Phoenix)


1275 W. Washington,
Phoenix, Arizona 85007
(602) 542-5263 (voice)
(602) 542-5002 (TTY)





Arizona Attorney
General’s Office
(Tucson)

Housing and Urban
Development (HUD)


San Francisco Regional
Office
600 Harrison Street, 3rd
Floor
San Francisco, CA 941071387
(800) 347-3739 (toll free)

400 W. Congress Street

(415) 489-6524 (voice)

Tucson, Arizona 85701

(415) 436-6594 (TTY)

(520) 628- 6500 (voice)
(520) 628-6872 (TTY)

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-05-00156-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)

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