Using Reasonable Accommodations and Reasonable Modifications to Address Lease Violations Resulting from Disability Related Behaviors

Disability-related behaviors can sometimes result in lease violations. If faced with an adverse housing action based on disability-related behaviors (e.g., notice to cure, notice of eviction), tenants and their advocates should assess whether there is a reasonable accommodation or reasonable modification available that can cure the lease violation. Tenants with disabilities are entitled to reasonable accommodations and reasonable modifications under fair housing law even after a lease violation has occurred. Reasonable accommodations and reasonable modifications can be powerful tools to prevent or challenge the eviction of disabled tenants.

Determining whether there is a reasonable accommodation or reasonable modification that can remedy a lease violation and help a tenant stay housed can be broken down into three steps.

STEP ONE: Ask – is the behavior complained of an actual lease violation?

When faced with a complaint or notice regarding disability-related behaviors, the first question you should ask is whether the behavior actually constitutes a lease violation.  Often, housing providers and neighbors lodge complaints and issue notices out of ignorance or fear.

Example:  Tenant talks to herself and engages in self-stimulating behavior, making others uncomfortable. This is not a lease violation.

Example:  Tenant pulled out all the flowers in the common area of his apartment complex and interferes with others’ quiet enjoyment by screaming out his windows at all hours of the night.  This is a lease violation.

STEP TWO: Ask – is the behavior violating the lease disability related?

In order to use reasonable accommodations or reasonable modifications to cure lease violations, the behavior violating the lease must be disability related.

Example:  Tenant is noticed for eviction due to excessive amounts of garbage and clutter in her home, which has created a fire hazard and attracted rats.  Tenant accumulates garbage and clutter as a result of a hoarding disorder.  Tenant’s lease violation is related to her disability.

Example:  Tenant is deaf.  Tenant is noticed for eviction for dealing narcotics and allowing unauthorized people to live in her unit.  Tenant’s lease violation is not related to her disability.

STEP THREE: Ask – is there a reasonable accommodation or reasonable modification available that addresses the lease violation?

If disability related behaviors have resulted in a breach of lease terms, explore whether the provision of reasonable accommodations or reasonable modifications may cure the lease violation. A housing provider is required to provide reasonable accommodations and to permit reasonable modifications if: (1) they are reasonable and necessary, (2) they do not create undue burdens; and (3) continuing the tenancy would not result in a direct threat to others. Whether a requested accommodation or modification must be provided or permitted in a particular situation requires a case-by-case analysis that looks at these three factors and more.

1. What is a “reasonable accommodation”?

A Reasonable Accommodation is an exception, change, or adjustment in rules, policies, practices, or services when such an accommodation may be necessary to afford an individual with a disability an equal opportunity to use and enjoy a dwelling unit and public and common use areas, or an equal opportunity to obtain, use, or enjoy a housing opportunity.[i]  For example:

• Adjustment of the rent due date to accommodate receipt of public benefits.
• Allowing a tenant time to engage services to assist in addressing conditions or behaviors that violate lease provisions.
• Waiver of “no pet” policy to accommodate service dogs or emotional support animals.

It is discriminatory for a housing provider to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling unit, including public and common use areas.[ii]

Housing providers can be required to incur reasonable costs to accommodate a disabled tenant, provided such accommodations do not pose an undue burden, discussed below.[iii]

For more on the right to reasonable accommodations in housing see the Joint Statement of the Department of Housing and Urban Development and the Department of Justice on Reasonable Accommodations (PDF).

2. What is a “reasonable modification”?

A Reasonable Modification is a change, alteration or addition to the physical premises of an existing housing accommodation, when such a modification may be necessary to afford the individual with a disability an equal opportunity to use and enjoy a dwelling unit and public and common use areas, or an equal opportunity to obtain, use, or enjoy a housing opportunity.[iv] For example:

• Ramps
• Flashing Doorbells
• Grab Bars
• Soundproofing

It is a discriminatory housing practice for any person to refuse to allow an individual with a disability the opportunity to make reasonable modifications to the premises of an existing housing accommodation that is occupied by or will be occupied by an individual with a disability.[v]

Generally, in privately owned and operated housing, the costs of reasonable modifications are the tenant’s responsibility.[vi] There are some situations where the cost of needed modifications falls on the housing provider, rather than the tenant. For example, when the housing is owned by a government entity, or the recipient of federal or state funding for affordable housing, or part of a government entity’s program or activities to provide housing, the request for reasonable modification is treated as a request for reasonable accommodation (where the provider pays).[vii]  The cost of a reasonable modification may also shift to housing providers in other circumstances as well, for example, if the need for the accommodation or modification arises from the owner’s failure to develop, maintain or repair the property as required by law or contract, or to otherwise comply with related legal obligations.[viii]

For more on the right to reasonable modifications in housing see the Joint Statement of the Department of Housing and Urban Development and the Department of Justice on Reasonable Modifications.

3. Reasonable accommodations and modifications must be both “reasonable” and “necessary”.  What does this mean?

When analyzing whether a request is reasonable, consider:

• Is the request reasonable on its face?  Feasible? Possible?
• Is the request going to result in an undue burden?
• If the request going to fundamentally alter the nature of the housing provider’s services. Programs or activities?
• Is the change requested going to result in a direct threat to other tenants or property?

The concepts of undue burden, fundamental alteration and direct threat are discussed in more detail below.

When analyzing whether a request is necessary, consider:

• Does the request promote equal opportunity for the tenant to use/enjoy their housing?
• Will the request enhance the tenant’s quality of life by ameliorating the effects of their disability?

4. There must be a “nexus” between the tenant’s disability, the requested accommodation or modification, and the ability of the tenant to use and enjoy.  What does this mean?

A nexus means that there is a connection between the tenant’s disability, the requested accommodation and the ability of the tenant to use and/or enjoy their housing.

If a tenant’s disability or need for a particular accommodation or modification is not obvious or readily apparent, a housing provider may ask for documentation to support the person’s request for a reasonable accommodation.[ix] But note:

• A tenant or resident is not required to disclose their specific disability; they need only disclose enough information to document their disability-related need for the requested accommodation.
• Reliable documentation of an individual’s disability and/or their need of a reasonable accommodation can come from a variety of sources including a doctor or other medical professional, a peer support group or a social worker.  It can also include an individual’s own credible statement or documentation of receipt of disability benefits.

Example: Tenant is a veteran with Post-Traumatic Stress Disorder (PTSD) and lives in an apartment that shares a wall with multiple other units. Tenant experiences night terrors – episodes of screaming and sleepwalking – numerous times a week. He has been threatened with eviction for violating his neighbors’ right to “quiet enjoyment”. Tenant requests a transfer to an available end unit apartment and the ability to install soundproofing in his unit. Tenant’s social worker provides a letter of support for Tenant’s requests and confirms that Tenant has a mental health disability that causes night terrors. Both the accommodation request (ability to transfer to another unit) and the modification request (ability to install soundproofing) are connected to Tenant’s disability and his ability to use and enjoy his housing. A nexus exits.

Example: Tenant has a physical disability and uses a wheelchair for mobility. Tenant’s apartment complex has a strict “no smoking” policy. Tenant is noticed for eviction after numerous warnings about smoking in his unit and common areas. Tenant agrees to stop smoking in common areas but requests the ability to smoke in his unit as an accommodation for his disability.  As the accommodation request does not appear to have any connection to the tenant’s disability or his ability to use or enjoy his housing, more information is needed and may be requested by the housing provider.

5. How and when should a tenant make their request for a reasonable accommodation or modification?

A request for a reasonable accommodation or reasonable modification can be made at any time during a tenancy, including during the eviction process, at or after trial, and in certain circumstances even after eviction.[x]

Although reasonable accommodation and modification requests do not have to made in a particular manner or using particular terms, it is a good practice tip to make requests in a dated writing using words like “disability”, “accommodation”, and/or “modification”.  Creating a clear record is important if disputes arise later on.

6. What happens if the housing provider thinks the tenant’s request for accommodation or modification is not reasonable?

When a housing provider refuses a requested accommodation or modification asserting that the request is not reasonable, the provider must discuss with the requester whether there are alternatives that would effectively address the requester’s disability-related needs. This is called the “interactive process” and is required under California law.[xi] Federal law does not mandate an interactive process, but strongly suggests that a housing provider who is skeptical of a tenant’s alleged disability or the reasonableness of a requested accommodation or modification, engage in an interactive process regarding the need for accommodation, particularly when it is not obvious.[xii]

7. When can a housing provider refuse a request for reasonable accommodation or modification?

A housing provider can refuse a request for a reasonable accommodation or reasonable modification if it would result in an undue financial or administrative burden, or fundamentally alter the nature of the housing provider’s housing services, programs or activities.[xiii]

An undue burden is an unreasonable financial or administrative cost. When analyzing whether a request would result in an undue burden, the following factors, among others, are considered:

• Cost;
• Benefit to tenant;
• Financial resources of the provider;
• Availability of equally effective less expensive alternatives.[xiv] 

A fundamental alteration arises when a requested accommodation or modification would change the essential nature of the services or operations of the person being asked to provide the accommodation or modification.[xv] A fundamental alteration most often arises when the requested accommodation is not related to the provision of housing.

Example: Tenant is blind and lives in a privately owned and operated apartment. Tenant asks the building manager to help her clean her unit on a weekly basis a reasonable accommodation for her disability. As this request is unrelated to the provision of housing, and is not a service ordinarily offered to tenants, it need not be provided by management.

Example: Tenant is blind and asks that her on-site manager call her to let her know when there are planned interruptions to utilities, rather than leave a notice on her door.  This request is related to the provision of housing services and is not a fundamental alteration.

8. What if the request would result in a direct threat?

A requested accommodation or modification may also be denied if it would result in a direct threat to the health or safety of others (i.e., a significant risk of bodily harm) or would cause substantial physical damage to the property of others, and such risks cannot be sufficiently mitigated or eliminated by another reasonable accommodation.[xvi]

A determination that an individual poses a direct threat requires an individualized assessment that is based on reliable objective evidence and considers the following:

• the nature, duration, and severity of the risk;
• the probability that injury will actually occur; and
• whether there are any reasonable accommodations that will eliminate the direct threat.[xvii]

Example:  Tenant threatened her neighbor with physical harm and spray painted a common area wall with obscenities. Tenant was recently diagnosed with a mental health disability and has not yet engaged in treatment. After being served with an eviction notice, Tenant provides her landlord with evidence that her behaviors were the result of a mental health episode and requests that the eviction notice be withdrawn and that she be provided an opportunity to engage in treatment. The landlord may be required to grant this accommodation request.

Example:  Tenant has threatened her neighbor and caused damage to her unit on multiple occasions during the last two years. Tenant acknowledges that her behaviors are related to a disability, as well as a co-existing substance abuse disorder. Tenant has been served with eviction notices on multiple occasions due to her behaviors, but the housing provider has withdrawn them all on Tenant’s assurances that she will engage in treatment and take anger management courses. Recently, Tenant pushed a neighbor to the ground during an argument over a parking space. The next day, Tenant shattered the neighbor’s windshield. Tenant is again noticed for eviction. Tenant requests that the housing provider withdraw the notice as a reasonable accommodation and promises to do better.  Tenant is not willing to engage in any treatment, as she believes that formal treatment is “not for her”, but states that she is motivated to change because she needs her apartment. Given the history of unsuccessful attempts to accommodate Tenant, Tenant’s lack of a concrete plan to eliminate the problem behaviors, and the likelihood of future threats and damage, the housing provider may not be required to provide the requested accommodation.

9. What if my housing provider refuses my request for reasonable accommodation or modification?

If the request for a reasonable accommodation or modification is denied, it may provide an affirmative defense to eviction and/or the basis for an affirmative fair housing claim.[xviii]

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[i] 2 CCR § 12176(a).

[ii]    42 U.S.C. § 3604(f)(3)(B); 24 C.F.R. 100.204(a); 2 CCR § 12176(c).

[iii] See Giebeler v. M & B Assocs., 343 F.3d 1143, 1152 (9th Cir. 2003) (citing U.S. v. California Mobile Home Park Mgmt Co., 29 F.3d 1413 (9th Cir. 1994)).

[iv] 2 CCR § 12176(b).

[v] 42 U.S.C. § 3604(f)(3)(A); 24 C.F.R. 100.203(a).  2 CCR § 12176(d).

[vi] 42 U.S.C. § 3604(f)(3)(A) (discrimination includes a refusal to permit, at the expense of the disabled person, reasonable modifications of existing premises if such modifications may be necessary to afford such person full enjoyment of the premises); 2 CCR § 12176(d).

[vii] 2 CCR § 12181(h).

[viii] 2 CCR § 12179(d)(6).

[ix] 2 CCR § 12180(a)(2). See also Joint Statement on Reasonable Accommodations at Questions 17-18; Joint Statement on Reasonable Modifications at Questions 6-7.

[x] 2 CCR § 12176(f)(8)(B).

[xi] 2 CCR § 12177.

[xii] See Joint Statement on Reasonable Accommodations at Question 7 (a housing provider “should” engage in an interactive process with a tenant to discuss the tenant’s disability-related need for a requested accommodation); Rodriguez v. Morgan, 2012 WL 253867, at *8 (failure to engage in an interactive process “can be considered in determining whether [a housing provider] failed to reasonably accommodate the tenant’s disability”); Smith v. Powdrill, No. CV 12-06388 DDP RZX, 2013 WL 5786586, at *7 (C.D. Cal. Oct. 28, 2013) (“If a landlord is skeptical of a tenant’s alleged disability or the landlord’s ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue.”)

[xiii] 2 CCR 12179(b)(2) and 2 CCR 12179(c)(2)(i) (undue burden); 2 CCR  12179(b)(1) and 2 CCR 12179(e)(2) (fundamental alteration). See also Joint Statement on Reasonable Accommodations at Questions 7-8; Joint Statement on Reasonable Modifications at Question 31.

[xiv] 2 CCR 12179(d).

[xv] 2 CCR § 12179(e).

[xvi] 42 U.S.C. § 3604(f)(9); 24 C.F.R. § 100.202(d); 2 CCR § 12179(b)(3). See also Joint Statement on Reasonable Accommodations at Question 5.

[xvii] 2 CCR § 12179(b)(3)(A) and (B).

[xviii] 2 CCR § 12176(f)(8)(A).