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A Landlord's Primer on "Reasonable Accommodations"

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, Reasonable Accommodations / Comments

I am seeing an increase in tenants making "reasonable accommodations" requests during their tenancy. While similar to "reasonable modifications," which I blogged about a few weeks ago, reasonable accommodations are different.

A reasonable accommodation request is one in which a tenant who has a disability asks his/her landlord to make an accomodation to the landlord's rules, policies, practices or services as a result of that disability. Wisconsin's Open Housing law, states that a landlord may be found to have discriminated against a tenant if the landlord refuses to make reasonable accommodations in rules, practices, policies or services that are associated with housing when such accommodations may be necessary to afford the person equal opportunity to use and enjoy housing, unless the accommodations would impose an undue hardship on the owner of the housing. Sec. 106.50(2r)(4), Wis Stats.

NOTE: For the most part, Wisconsin's Open Housing Law has adopted the language of the federal Fair Housing Act, so when when I mentione one or the other in this blog post, essentially I am referring to both.

So whereas reasonable modifications involve changes to the physical structure of a rental unit, building or grounds, reasonable accommodations would be a change to the landlord's rules, policies, procedures, and/or services. A request to install a wheelchair ramp would be a request for a reasonable modification whereas a request to allow a comfort/companion animal to reside with a tenant in a "no pets" building would be a request for a reasonable accommodation.

If requested (and all other requirements are met) a landlord must make reasonable accommodations at any stage of the rental process, including the application process, screening process, during tenancy, post tenancy. Therefore a reasonable accommodations request can be made by an applicant, not just a tenant.

Similar to the law regarding reasonable modifications, an applicant or tenant is not entitled to reasonable accommodations unless the accomodation has been requested. That request can be in writing or oral and can be made by the applicant or tenant or by someone on their behalf.

A person is considered to have a disability if the individual (1) has a physical or mental impairment that substantially limits one or more major life activities, (b) is regarded as having such an impairment, or (c) has a record of such impairment.

A "physical or mental impairment" includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of controlled substances) and alcoholism.

A "major life activity" can include, but is not limited to, any activity that is of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning and speaking.

Just like with a reasonable modifications request, there must be an identifiable "nexus" or relationship between the disability and the accommodation request. If there is no "nexus" then a landlord can legally decline to make the accommodation.

If the applicant or tenant's disability is not outwardly obvious, a landlord is allowed to request reasonable disability-related information that will:

a. Verify that the applicant or tenant meets the federal Fair Housing Act or Wisconsin's Open Housing law's definition of a person with a "disability."

b. Describes the requested accommodation.

c. Shows the relationship between the disability and the accommodation request.

I hope that it goes without saying that any information obtained during this procees must be kept confidential by the landlord. If a person's disability is obvious or otherwise known and the need for the requested accommodation is also readily apparent or known, then the landlord may not request any additional information.

A landlord can legally deny a request for reasonable accommodations in certain circumstances. I have already mentioned a few situations that would allow a denial, such as a person who does not have a disability, or a circumstance where there is no "nexus" between the disability and the request. Additionally, a request could be denied if there is no disability-related need for the accomodation or if providing the accommodation is not "reasonable."

What is "reasonable" or not will be determined on a case by case basis, however the Department of Justice and H.U.D. have indicated that a request may be unreasonable if it would impose an undue financial and/or administrative burden on the landlord or of it would fundamentally alter the nature of the landlord's operations.

An example of an unreasonable accommodation request would be a tenant that has mobility limitations who requests that his landlord take him to the grocery store once a week.

Here are a few more examples of situations where the courts have upheld a tenant's request for reasonable accommodations.

- Accepting late rent and postponing the filing of an eviction against a tenant that is late with his/her rent because they have been hospitalized.

- Allowing a tenant with a vision disability to have a guide dog reside with her even though the landlord has a "no pets policy."

- Allowing a mobility impaired person to be assigned a parking spot closest to the apartment complex even though the landlord's has a "first come, first served" policy and does not allow assigned parking spaces.

- Allowing a tenant with severe arthritis to move from her 3rd floor unit to a vacant 1st floor unit so she can avoid having to climb stairs.

- Allowing a "companion/comfort animal" to reside with a tenant that has an anxiety disorder even though the landlord has a "no pets" policy.

NOTE: Requests for companion/comfort animals are so frequent these days -- and so abused -- that I will devote an entire blog post to this topic in the near future.

The Department of Justice and the U.S. Department of Housing and Urban Development have published a Joint Statement on Reasonable Accommodations Under The Fair Housing Act, that is a great resource for those landlords that have additional questions on this topic.

Tristan is a shareholder with the law firm of Petrie+Pettit and focuses his practice in the area of landlord-tenant law representing landlords and property management companies throughout Wisconsin.

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