Fair Housing Rights of People With Disabilities

1. Fair Housing Rights of People With Disabilities Overview of the federal and state Fair Housing Acts

2. The Fair Housing Act (FHA) and Fair Housing Amendments Act (FHAA) • The FHA was passed by 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.

3. 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

4. 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.

5. 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

6. 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.

7. 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

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. Reasonable Accommodations – What is “reasonable?” • A reasonable accommodation is one which does not pose 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.

22. 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);

23. 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.

24. 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.

25. HOW DO I REQUEST AN ACCOMMODATION OR MODIFICATION? I need to make my bathroom accessible

26. Request for Accommodation Request for Modification • 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. • 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?

27. 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 …”

28. The Arizona Fair Housing Act, Continued • Discrimination includes: • “A 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))

29. Enforcement of the FHAA – What Can I do if My Rights Have Been Violated? Franklin D. Roosevelt

30. File a Complaint with the Arizona Attorney General’s Office or HUD • In Arizona, if you file a complaint 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.

31. Filing Fair Housing Complaints • Arizona Attorney General’s Office (Phoenix) • 1275 W. Washington, Phoenix, Arizona 85007 (602) 542-5263 (voice) (602) 542-5002 (TTY) • Arizona Attorney General’s Office (Tucson) • 400 W. Congress Street Tucson, Arizona 85701 (520) 628- 6500 (voice) (520) 628-6872 (TTY) • Arizona Department of Housing and Urban Development (HUD) • San Francisco Regional Office 600 Harrison Street, 3rd Floor San Francisco, CA 94107-1387 (800) 347-3739 (toll free) (415) 489-6524 (voice) (415) 436-6594 (TTY)

32. 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.

33. 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

34. 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)