Housing Rights for Tenants with Disabilities

1. Housing Rights for Tenants with Disabilities Navneet Grewal National Housing Law Project LAAC Fresno Traveling training November 17, 2009 www.nhlp.org

2. Goals • Identify when a reasonable accommodation may be requested • How to request a reasonable accommodation • Enforcement Options

3. 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:

4. Overview and Rules

5. Obstacles to Obtaining Housing • Poor credit history related to disability • Lack 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 standard • Inability find a unit within the time from allotted by the housing authority

6. Obstacles to Maintaining Housing • Missing Rent Payments • Hoarding/Clutter • Threatening behavior towards others • Requesting a live-in aide • Denials of portability • Denials of transfers • Missing recertification appointments • Missing housing inspections

7. How to Access Housing • 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.

8. Sources of Law • FHA: 42 U.S.C. § § 3604, et seq • Section 504 of Rehabilitation Act: 29 U.S.C. § 794 • ADA 42 U.S.C. §§ 12131 et seq (and ADAAA) • CA Laws: FEHA, Unruh, CDPA, CA Gov’t Code §11135

9. When Must a Housing Provider Grant a Request? When a qualified person with a disability makes a request that is: NECESSARY + REASONABLE = MUST GRANT ACCOMMODATION

10. Qualified Person with a Disability (Federal) • 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.

11. 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. • Enablesthe tenant to satisfy the essential requirements of tenancy.

12. Reasonable • 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

13. Direct Threat • 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.

14. Making a Request

15. Making a Request • 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.

16. Making a Request • 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 preferable • Can be made at ANY TIME.

17. Denial • 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.

18. Enforcement Methods

19. Informal Advocacy • Engaging with the housing provider • Written request • Follow-up • Interactive process • PHA hearing

23. 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.

27. HUD/DFEH Complaint • One year statute of limitation • Can be filed quickly – online, by mail, or by phone • Duty 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.

31. Affirmative Litigation • Two Year Statute of Limitations • Can be filed concurrently with HUD/DFEH complaint • State or Federal Court • Compensatory damages, injunctive or equitable relief, and punitive damages, attorney fees

36. 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

39. 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

40. For technical assistance, trainings, and online resources: Navneet Grewal Staff attorney National housing law project ngrewal@nhlp.org (510)251-9400 ext. 3102 http://nhlp.org/resourcecenter?tid=63