Fair Housing and Reasonable Accommodations

WHAT IS THE LAW?

The Civil Rights Act of 1866 and the Fair Housing Act:  These two federal laws prohibit discrimination based upon race, color, religion, sex, disability, familial status or national origin against those persons who are seeking housing.  Arizona enacted fair housing laws that are equivalent to those federal laws.  Additionally, some local cities have additional ordinances that make it illegal to discriminate against a person’s age, marital status, or sexual orientation.

AS A LANDLORD, DO THESE LAWS APPLY TO ME?

If you own or manage rental housing in Arizona, you are likely covered by these laws.  There are a few exceptions to the law.  The laws exempt some dwellings.  Consult an attorney to see if you are exempted.  It is always better to comply with these laws than to see if there is a way you won’t be prosecuted for violating them!

WHAT IS HOUSING DISCRIMINATION AND HOW DO I KNOW IF I ACCIDENTALLY VIOLATED THESE LAW?

The following examples are stated in the flyer handed out by the Arizona Department of Housing.  If you have done any of the above, you may be guilty of violating fair housing laws.
•Refusing to sell, rent or show otherwise available housing.
•Only showing housing in areas where other minorities live.
•Harassment or intimidation against a protected class.
•Housing advertisement with discriminatory statements or displaying no minorities in a group scene.
•Offering different terms for identical dwellings.
•Extensive questionings prior to offering or providing information about the availability of housing.
•Being told that the dwelling is not appropriate for that particular family.
•Terms of availability change between the phone call and the actual visit.
•Failing to contact a prospective tenant after accepting their application.
•Posting an “available” sign but then telling a person that there are no available units.
•Refusing to make reasonable accommodations or allow a modification to the unit to make the unit more accessible for a person with a disability.
•Deny or refuse to rent to a person with a disability
•Impose application or qualification criteria that are different that those required of or provided to persons who are not disabled.
•Requiring persons with disabilities to only live on certain floors or areas.
•Denying those with disabilities access to recreational or other public and common use facilities.
•Charging a higher security deposit to those using a wheelchair.
•Signs, Rules or policies that impact a protected class such as a Sign that states “Unsupervised children must be accompanied by an adult” or “Children are prohibited from riding bikes in the parking lot”.


REMEMBER THAT A GOOD RULE OF THUMB IS TO CHECK EACH POLICY BY IMPOSING THE PHRASE “GREEN PERSON” WHEN IDENTIFYING WHO IS IMPACTED BY THE RULE OR POLICY.

Example:  No Green people are allowed in the pool area after 10:00, Green Persons are prohibited from using the common area without a non-green person present.  

You may require a leaseholder to be present when an occupant or a guest uses the pool, business center, etc.  Additionally, you really don’t want anyone to ride bikes or skateboards in the common areas or parking lot so just state “Bike Riding and Skateboarding are prohibited in common areas and parking lots.”  Curfew laws are city codes and are enforceable so a rule requiring all residents to comply with curfew laws is enforceable.  You can not use “concern for another person’s health and safety” as a reason for creating or enforcing a rule that is discriminatory.

WHAT DO I NEED TO KNOW ABOUT “REASONABLE ACCOMODATIONS”?

Not only is it illegal for housing providers to discriminate against a person who has disabilities, it is also illegal to refuse to make a “reasonable accommodation” to enabled a disabled person to fully enjoy the premises, including the common areas.  The definition of disability is when a tenant has a physical or mental impairment (permanent or temporary) which substantially limits one or more of a person’s major life activities.  

For example, a tenant may ask a landlord to waive a rule or make a policy change because of the tenant’s disability.  Here are several steps a landlord may want to take to determine whether the landlord is required to grant the request.

Have the tenant or prospective tenant fill out a “Request for Accommodation” form. Make sure that you always require every tenant to fill out this form, even if the need for the request is obvious.  Your procedures should always be the same, regardless of what type of request is made.

Review the request with top management or the owner to determine if the request meets the necessary requirements:

Establish the disability:  You should not request any additional proof (ie: doctor’s note) when the disability is obvious (ie: blind, wheelchair bound).  If the disability is not apparent, you may request evidence of the disability from a qualified medical provider (ie: medical doctor).  You may not inquire any further into what type of disability the tenant has.

Connection to the disability: The request must have a nexus to the disability.  This means that there must be a legitimate connection between what the tenant is asking for and the disability.  You may ask what the connection is in your request form even if the disability is obvious as long as you ask each and every person who makes the request the same question.  Once they have provided the answer, you must end your inquiry even if you still have questions about the true connection to the disability.

Reasonableness: The request from the tenant must be “reasonable”.  The federal and state laws require the landlord to grant the request if the request meets the “reasonableness” test.  If the request requires the landlord to “fundamentally alter the business” or if the request requires the landlord to “suffer an undue burden”, then the request is not reasonable.

Once the tenant meets the above, the request should be granted.  The landlord should give the tenant notice in writing of the approval of the request and the requirements for the approval.  This means that if the landlord is going to make and pay for the modification, the landlord needs to tell the tenant what steps it is taking to complete the request and state the timeframe for completing that process.  If the landlord is not going to pay for the requested modification, the landlord should tell the tenant in writing that he approves the request but that he will not pay for it.  The landlord should require the tenant to use a licensed and bonded contractor and to provide written proof to the landlord that the company holds the correct licenses, etc. and then provide proof that it has been paid for and that no lien has been placed against the property.  

If the landlord is unable to grant the request, the landlord should participate in an “interactive process”.  The landlord and the tenant need to try to meet and engage in some meaningful discussions to try and discover is there is an acceptable compromise that would satisfy the tenant’s need.  This process should be documented in writing too so that you can show what steps were taken.

WHAT ARE SOME TYPES OF REQUESTS THAT I SHOULD APPROVE AND ARE THERE REQUESTS I SHOULD AGREE TO PAY FOR?

Pets:  Waiver of the pet deposit and all pet rent.  If the tenant fills out the form and provides the correct documentation, you can not request or accept a pet deposit or pet rent for that animal.  That animal treated just like a wheelchair.  You can not prohibit the animal, even if it is a prohibited breed.  You can not require any insurance that would cover injury from the pet.  You can require the pet to be licensed though the state and have all current shots. In general, one service animal per resident is the rule, although a tenant may need more than one service animal if they have multiple disabilities.  

Alterations to the Premises:  If a tenant asks you to alter the premises by adding a ramp, grab bars to the unit, or similar issue, the landlord should consider paying for those repairs.  There are no specific requirements about how much money the landlord is required to pay for those alterations but keep in mind that if is not unreasonable, an undue burden or substantially alter the landlord’s business, it is always safer to agree to pay for those alterations.  

WHAT IF I THINK THE REQUEST IS UNREASONABLE AND WILL COST ME A LOT OF MONEY?

Once again, there is no specific bright line that states what must be approved and paid for or what must be approved but not paid for.  If the landlord approves a request but does not agree to pay for those alterations, he must still permit the tenant to make those changes at their expense as long as the tenant agrees to put the unit back into the original shape once the tenant vacates the unit.  There are some requests that are too burdensome or clearly fundamentally alter the landlord’s business.  For example, asking the landlord to come in and clean the apartment every day at the landlord’s expense is an unreasonable request.  

REMEMBER, CONTACT AN ATTORNEY FOR ADVICE BEFORE YOU DENY A REQUEST.