Archive for category Reasonable Accomodations

HUD Issues Notice on Assistance Animals and Reasonable Accomodations For Persons with Disabilities

Today the U.S. Department of Housing and Urban Development (HUD) issued a notice on assistance animals and reasonable accomodations for persons with disabilities.

Not to long ago I wrote a post that dealt with this subject.  HUD’s new notice also adds clarifying information to that post.

Disability-related complaints, including those that involve assistance animals, are the most common discrimination complaint that HUD receives per John Trasvina, HUD Assistant Secretary for Fair Housing and  and Equal Opportunity, so HUD felt a need to publish this Notice to provide further guidance on the topic.

The notice will provides landlords and management companies with an explanation how to properly treat a request by a tenant or their guest for a reasonable accomodation to the landlord’s “no pet” policy.  Below are some highlights from the Notice but I strongly encourage everyone to read the entire Notice.

Highlights:

1.  While the definition of a “service animal” under the ADA has been limited to include only dogs that have been specifically trained (and it specifically excludes emotional support animal) this limited ADA definition DOES NOT limit a landlord’s obligations to make reasonable accomodations for assistance animals under the Fair Housing Act and Section 504 of the Rehabilitation Act ot 1973, (or Wisconsin’s Open Housing Law for that matter)/

2.  A reasonable accomodation analysis must be considered when persons with disabilities use (or seek to use) assistance animals in housing where the landlord forbids residents from having pets or otherwise imposes restrictions or conditions relating to the pet.

3.  Assistance animals provide many disability-related functions including, but not limited to:

a.  guiding individuals who are blind or sight-impaired

b.  alerting individuals who are deaf or hard of hearing

c.  providing protection or rescue assistantance

d.  pulling a wheelchair

e.  fetching items

f.  alerting persons to impending seizures

g.  providing emotional support to persons with disabilities who have a disability-related need for such support.

4.   For purposes of a reasonable accomodations request, there is no requirement that the animal be individually trained or certified.

5.  Landlords are to evaluate a requests for a reasonable accomodation to posses an assistance animal in a rental unit using the general principles applicable to all reasonable accomodations requests.

6.  After receiving such a request a landlord must consider the following:

a.  Does the person have a disability?

b.  Does the person have a disability-related need for an assistance animal?

If the answer to both questions is “yes” then the federal laws (and Wisconsin’s Open Housing laws) requires a landlord to modify or provide an exception to its “no pets” rule or policy so that the tenant can have an assistance animal.

7.   The request for an assistance animal can be denied, even if the answers to the above questions were “yes”, if:

a.  the specific assistance animal poses a direct threat to the health and safety of others that cannot be reduced or eliminated by another reasonable accomodation.

b.  the specific assistance animal would cause substantial physical damage to the porperty of others that cannot be reduced or eliminated by another reasonable accomodation.

8.  Breed, size, and weight limitations may not be applied to an assistance animal.

9.  Landlords may not require applicants and residents to pay a deposit for an assistance animal.

10.  Landlords may require a tenant to cover the cost of repairs for damage caused by an assistance animal to the rental unit or common areas after it has occurred.

11.  Landlords may ask individuals with disabilities who’s disability is not readily apparent or known to the landlord, to submit reliable documentation of a disability and their disability-related need for an assistance animal.  The documentation is considered sufficient if it establishes the person has a disability and that the animal will provide some type of disability-related assistance or emotional support.

12.  A determination as to whether a person has a disability-related need for an assistance animal involves an individualized assessment.  There are no birhgt line rules here.  The analysis is very fact specific.

13.  A delayed response to a request for a reasonable accomodation could be considered a violation if the delay is solely to frustrate the process.

 

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So Let’s Talk About . . . Companion/Comfort Animals In Rental Properties

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I have been promising that I would blog about this topic for months (could it possibly be over a year even) and the time has finally come.  So let’s talk about companion/comfort animals in rental properties.

Background:

I will use the terms comfort animals and companion animals interchangeably throughout this post.

So we are all on the “same page” a companion animal is an animal that is NOT specifically trained or certified but rather provides a tenant with a disability with emotional support.  Specifically trained and certified animals that assist people with disabilities is beyond the scope of this post.

Wisconsin does not have a specific statute related to comfort animals.  Many people improperly think that sec. 106.50(2r)(4)(bm), Wis. Stats.  entitled “Animals Assisting People with Disabilities” applies to companion animals.  It does not.  That section deals only with specially trained and certified animals that help people with mobility, vision or hearing impairments.  Comfort animals are not specially trained and/or certified and they do assist people with disabilities afecting more than just mobility, hearing and vision.

So what is the applicable Wisconsin law dealing with companion animals or comfort animals if they do not fall under this provision?  Comfort animals are dealt with under a much more broad section of fair housing law dealing with “reasonable accommodations” which can be found at sec. 106.50(2r)(4), Wis. Stats.

A “reasonable accommodation” is a request made by a tenant for a change in a landlord’s rules, policies, practices or services that are associated with housing when such accommodation is necessary to afford an individual equal opportunity to use and enjoy housing.

For example, a request by a tenant to keep a companion animal is a request for a reasonable accommodation to a landlord’s “no pet” policy.

The Law:

It is considered to be discriminatory to refuse to allow a tenant’s request to keep a comfort animal if they meet the following requirements:

1.   The tenant meets the definition of having a disability under Wisconsin or federal law (“an individual with a physical or mental impairment that substantially limits one or more major life activities, a person regarded as having such an impairment, or a person with a record of such an impairment”).

2.   The accommodation must be necessary to afford the disabled tenant an equal opportunity to use and enjoy the rental property.

3.   There must be an identifiable relationship (or nexus) between the tenant’s disability and the request.

So in the case of a request for a companion animal, the tenant must demonstrate a nexus between their disability and the function or service that the companion animal provides.

A landlord may request reliable disability-related information from a tenant that is necessary to: (1) verify that the tenant meets the definition of having a disability, (2) describes the needed accommodation, and (3) shows the relationship between the two.   If the disability is open and obvious then the landlord should not request verification of the disability from the tenant.

The tenant’s specific disability need not even be disclosed – just the fact that the tenant has a disability is sufficient.

A tenant’s request for a reasonable accommodation may be oral or in writing and the actual term “reasonable accommodation” need not be used.  The request can even be made by someone on the tenant’s behalf.

Practical Effects:

In case you are wondering, the threshold that a tenant must meet in order to be able to keep a comfort animal is very low.

It is not even required that the tenant’s doctor confirm that the tenant has a disability.  HUD and DOJ’s Joint Statement on Reasonable Accommodations Under The Fair Housing Act (May 17, 2004) states that a doctor or “other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the tenant’s disability” may provide the verification of the tenant’s disability.

As mentioned previously, a tenant’s comfort animal need not be specially trained or certified.  A comfort/companion animal can be any type of animal that the tenant wants.  It could be the dog or cat (or mouse, rat, lizard, fish, . . .  ) that the tenant owned prior to becoming disabled.  It could be the stray dog that the tenant found walking down the alley last week.  It could be a cat that the tenant’s mother no longer wants in her house.  It could be the rat that the tenant bought at the local pet shop.

I have read articles, case law, and been involved in cases in which all kinds of animals have been requested to serve as a tenant’s companion animals . . .  a miniature horses (because it would live longer than a dog and the tenant’s mental health disability would be exacerbated by the death of another dog that wouldn’t not outlive her), 5 cats (each one allegedly assisted the person with a different aspect of their disability), snakes (tenant was allergic to dander), and pit bulls (why . . . . just because).  There is no limit on the type/breed, size, or age of a companion animal.

So if the tenant wants a Bull Mastiff as their companion animal even though they live in an efficiency apartment and a much smaller dog could serve the same purpose, they can do that.

A landlord can deny a tenant’s request for a companion animal if it:

1.  Poses a direct threat to the health or safety of others unless the threat can be eliminated or greatly reduced.

2.  Results in substantial physical damage to the property of others unless the threat can be eliminated or greatly reduced.

3.  Poses an undue financial burden and administrative burden.

4.  Fundamentally alters the nature of the housing provider’s operations.

For example, a landlord could exclude a tenant’s comfort animal if that animal’s behavior poses a direct threat because it attacked another tenant.

In order to make a decision to deny a tenant’s reasonable accommodation request to keep an animal that poses a direct threat to others safety, you will be required to go through a very fact intensive analysis.  You cannot just refuse the tenant’s pit bull comfort animal just because you might believe that all pit bulls are inherently dangerous.  There must be a direct threat not just a speculative risk.   Even if the animal was once dangerous, if the tenant takes the animal to obedience training, administers medication, or purchases the animal equipment (like a muzzle) which causes the animal to no longer be dangerous, then it may no longer be reasonable to exclude the animal.

I have worked with many landlords and management companies in analyzing whether a tenant’s request for a reasonable accommodation to keep a companion animal should be granted.  Without a doubt the single most difficult concept for my clients to accept is that a comfort animal IS NOT A PET.

I find it easier for landlords to understand this concept if they think of the comfort animal as an assistive device such as a wheelchair, crutches,  or pain medication.  By thinking this way, many landlords will be better able to keep themselves out of trouble.  Let me explain provide an example.

One of my clients generally understood that he had to allow his tenant to keep a comfort animal but he was wondering if he could at the very least require the tenant (and the companion animal) to live in the one building in his apartment complex that allowed pets.  It was a very innocent question and one that I sure many landlords might have themselves.

The answer is a resounding “NO.”  Why is that?

Remember, a companion animal is not a pet.  Again, think of the companion animal as an assistive device such as a wheelchair.  Would it be acceptable to require all tenants that use wheelchairs to live in one building together?   Would it be OK to require all tenants that are prescribed antidepressant medication to live on the same floor?  Of course not.  Well the same goes with the tenant with the companion animal.

Since comfort animals are not pets a landlord is also not allowed to make the tenant that has one enter into a Pet Agreement or pay a monthly pet fee or even a pet deposit.

Having said that, a tenant that has a companion animal is still responsible for the animal’s behavior and any damage that it may cause.  For example, the tenant must still pick up after the companion animal.  The tenant must still keep the comfort animal on a leash and prevent it from jumping on or harming others.  The tenant must still prevent the comfort animal from making excessive noise or damaging the rental property.

If a tenant does not take responsibility for the actions of their companion animal a landlord has every right to serve that tenant with the appropriate notice to correct breach or vacate and evict if them if needed.  Since comfort animals are not specially trained or certified poor behavior is often an issue.  I have had to evict several tenants with companion animals as a result of their poor behavior.   In one case the companion animal which happened to be a dog repeatedly escapeed from the rental unit and ran free in the common areas of the building.  Another case the animal (a dog again) bit another tenant.  Another, involved a dog that crapped all over the lawn and the tenant refised to pick up after it.

Conclusion:

The popularity of comfort/companion animals is not waning.  I expect that landlords and management companies will be getting more and more requests as more people are being diagnosed and treated for mental health issues for which a companion animal may prove helpful.  Not to mention that many war veterans are returning with PTSD, depression, and/or anxiety, for which comfort animals are being prescribed.  And there will always be those tenants that just want to have a pet without having to pay a pet fee or move to a rental unit that allows pets, so they buy a pet, play the system, and “disguise” their pet as a comfort animal.

If you have not already dealt with a request by a tenant for a reasonable accommodation to your “no pet” or “limited pet” policy, I am certain that you soon will.  As such, it is very important that you educate yourself on the applicable laws so that you can properly handle such a request from a tenant and not run afoul of federal or state laws.

If you would like to learn more about comfort animals, reasonable accomodations, and fair housing (discrimination) law considering attending the AASEW’s upcoming LANDLORD BOOT CAMP on February 23rd, 2013.

 04-30-13 UPDATE:  HUD has issued a Notice on Assistance Animals and Reasonable Accomodations For Persons with Disabilities.  See my post on this.

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5 Things This Landlords’ Attorney Wants For Christmas

With the coming of the holidays, comes list of gifts that people want for Christmas.  So I thought I would put together one of my own.  So here is a list of the top 5 things that this landlords’ lawyer would like for Christmas.

 

5.   That Tenants’ Requests For Reasonable Accommodations To Allow for the Keeping of  Companion/Comfort Animals Would Actually Be “Reasonable”

The past few years — and especially this past year — have seen a large rise in requests by tenants for a reasonable accommodation to landlords’ “no pet” or “limited pet” policies specifically to allow for the keeping of a companion/comfort animal.  A companion/comfort animal does not need to be specially trained and therefore can be any type of animal including the family dog, cat, gunea pig, or even a miniature horse.  A tenant can ask for a reasonable accommodation — and it should be provided — as long as the tenant has a disability (i.e. an individual with a physical or mental impairment that substantially limits one or more major life activities) and the accommodation request has a “nexus” to the tenant’s disability and will allow them to more fully enjoy a major life activity.

However, somewhere along the line tenants seem to have forgotten about the word “reasonable” in “reasonable accommodations.”

It is not reasonable in my opinion to need 5 kittens as companion animals (which were recently born to a landlord-approved pet cat) just because the tenant thinks the kittens are cute and does not want to get rid of the litter.

It is not reasonable in my opinion for a tenant to request a pit bull dog as a reasonable accommodation just because the tenant’s relative recently lost their home to foreclosure and can’t find a place for their pet “pitty” to live.

It is not reasonable to have to allow a miniature horse as a companion animal because the tenant does not want to have a dog instead because dogs do not live as long as horses do,  and if the dog should die it would exacerbate the tenant’s mental health issues.  Whereas the miniature horse will outlive the tenant so her mental health will be unaffected.  Who cares what happens to the miniature horse after the tenant passes.

 

4.   That Tenants Who File Bankruptcy Be Required To Disclose To The Bankruptcy Court That They Are Renters and that the Bankruptcy Court Create A More Efficient Process For The Tenant To “Pay and Stay” or Vacate

If a tenant files for bankruptcy something called the “automatic stay” kicks in that prevents any creditors (yes, that includes landlords) from attempting to collect a debt or in the case of landlords – evict a tenant.  Now, tenant/debtors are supposed to disclose in their bankruptcy schedules that they file with the court whether or not they have any “executory contracts or unexpired leases.”  Without fail, tenants and there bankruptcy attorneys always check the box saying that they have no executory contracts or unexpired leases.  I have handled at least 30 of these situations for my landlord clients and not once has the tenant advised the court that they were under an unexpired lease.

A landlord is then required to pay a filing fee, file a motion to lift the automatic stay, wait 14 days for the tenant to object, and if so participate in a hearing before the court, to present evidence that the tenant isn’t paying their rent and the landlord should be allowed to proceed to evict the tenant.  This process can be expensive and time consuming for a landlord whose hands are legally bound from doing anything until the bankruptcy court says he can.

It would be nice if the court or the bankruptcy trustee would confirm whether or not the debtor is a tenant and whether or not they are up to date with rent and if not, determine if the tenant can get caught up so s/he can stay, or advise the tenant/debtor that they must vacate the landlord’s property.

To require a landlord jump through all of these hoops in order to remove a non-paying tenant from his rental property is just another financial drain on landlords.  A landlord will spend at least one month (if not more) trying to lift the stay in bankruptcy court.  Once that is completed, he then needs to serve the tenant with the appropriate notice, and after that time has elapsed, pay more money to file the eviction, and then wait another 2 weeks or so until the initial appearance in eviction court.  As you can see, this process can  delay things at least 2 months.  So I would like to expedite this somehow.  Wishful thinking I know . . .  but hey, this is my wish list : )

 

3.   That Tenants Stop Using Jury Trial Demands To “Buy” More Time In Evictions

In my 17+ years of law practice I have probably encountered somewhere between 10-15 requests for a jury trial by a tenant that I am evicting.  Not one of those cases have ever resulted in an actual jury being selected.  Instead the demand is often made just because it will prolong the case.  In Milwaukee County when a jury trial demand is made, the case is tabbed to a large claims judge who often has a very busy caseload and is unable to even get the case into court for a Scheduling Conference for 2 months.  Oftentimes, a trial isn’t scheduled for months after the Scheduling Conference.  On the other hand if a jury trial is not made, the small claims judge in Milwaukee County can hear the eviction within a week in most cases.

I have had jury trial demands filed in failure to pay rent cases where the tenant has no legal defense.  Tenant didn’t pay rent, notice was properly served, tenant didn’t pay past due rent within cure period, and an eviction lawsuit was field.  Tenant doesn’t deny any of it but wants a jury trial.  Now my client gets to sit for months with a non-paying tenant before obtaining a judgement of eviction.  And no, landlords rarely ever see those rent amounts from the tenant even if they obtain a money judgment against them later because many tenants are not collectible.

I have had jury trial demands filed in cases where the tenant is being evicted for engaging in criminal activity that is scaring (and at times injuring) fellow tenants and neighbors.  Yet, with the jury demand having been made, the landlord, along with the law-abiding tenants and neighbors, have to deal with the scofflaw tenant for months, unless they by chance would get arrested.

The law needs to be changed in this regard.  While jury trials are an important part of the judicial system this practice that I am seeing more and more of is clearly an abuse of the system.  Perhaps requiring that all jury trials must be held within so many days of the initial appearance or in failure to pay rent cases requiring that all past due rent must be paid up and future rent continue to be paid or the tenant loses his/her right to the jury trial.  Something needs to happen to stop this frivolous practice.

 

2.   That All Courts Follow the Law with Regard To Granting “Stays” in Eviction Actions

Sec. 799.44(3), Wis. Stats., is very clear that before a court is allowed to “stay” a writ that the tenant must pay all rent and other charges due as well as any rent that will become due during the period of the “stay.”  This law is often ignored by the courts to landlords’ detriment.

I understand that it is difficult to tell a tenant that you are ordering them to immediately vacate the rental property even when the cause of their non-payment of rent is due to no fault of their own – such as losing a job due to downsizing or health issues — but that is what the law says.  If it is a bad law (and I am not saying that it is) then it can and should be changed through the legislative process.

Let me put this in another context.  A tenant that has lost their job or that has encountered a serious medical issue may also not have money to buy food for their family, but that doesn’t mean that they are allowed to shoplift food from the grocery store.  If they did that they would be arrested.

So why is a landlord required to provide housing for a tenant who’s tenancy has been properly terminated and after all proper legal channels have been followed?  What makes a landlord so special that s/he gets this special treatment that places them in a different category than any other creditor.  Why is a landlord required to house the non-paying tenant to the landlord’s financial detriment and risk their ability to continue to provide housing for their paying tenants.  Again, for those non-landlords that may be reading this post, most tenants are not collectible, so saying that the landlord will be made whole when they obtain a money judgment against the tenant is not realistic.

 

1.   That All Landlords Join a Landlord Association (such as the Apartment Association of Southeastern Wisconsin – AASEW) 

There are more private landlords in Wisconsin than there are teachers but landlords’ voices are not anywhere near as powerful as are teachers.  The reason for this is that landlords are not organized.  Landlords tend to be an independent type that enjoy being their own bosses.  That is well and good but landlords need to set that independent spirit aside on occasion for the betterment of themselves and all landlords.  Only when landlords unit can positive change occur for them as there is strength in numbers.  It is very difficult to survive financially as a landlord these days.  But by joining a landlord association,  a landlord’s life can become a little easier.  First, through landlord associations, landlords can create a united voice to challenge bad legislation or champion new legislation.  Secondly, landlord associations provide educational opportunities for their members on changes in the law so landlords can stay out of legal trouble.  Third, there is camaraderie in joining a landlord association which allows members to rub elbows with other landlords may be facing, or have previously faced, the same struggles that you are having.

If all landlords joined a landlord association and became active in them, we have the money and the numbers to create change that would assist our industry.

____

Oh by the way Santa – if you cant give me any of my wishes on this list, I will settle for a new toy bike with red and white streamers dangling from the handlebars : )

Happy Holidays everyone!

 

 

 

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You Will Not Want To Miss AASEW’s Fourth Annual Landlord Boot Camp on Saturday Feb. 25th

Landlording can be pretty complex, with a seemingly never ending myriad of paperwork, rules, landlord-tenant laws and simple mistakes that can cost you thousands of dollars.

The Apartment Association of Southeastern Wisconsin’s Fourth Annual Landlord Boot Camp can help you navigate these treacherous waters and teach you how to run your properties with greater profit and less hassles.

I have given similar landlord-tenant law seminars to fellow attorneys, landlords, and property manager organizations throughout the state for other state-wide semianr companies that charge attendees $300-$400.  This is your opportunity to learn all of the same information at a huge discount through the Apartment Association.

 

Who:   Taught by Attorney Tristan R. Pettit (who drafts the landlord tenant forms for Wisconsin Legal Blank)

When:    Saturday, February 25th, 2012. 8:30 am – 5 pm

Where:   Clarion Hotel 5311 S. Howell Avenue, Milwaukee [Map]

Included:  100 plus page manual/outline to help you put what you learn into practice plus helpful forms.

Cost:  $159 for AASEW members and $249 for non-members.  If you are not a member of AASEW but are a member of another landlord/apartment association the cost to attend will be $199.

Specials: Not a member?  Pay just a dollar more and enjoy a 2012 AASEW membership.

Wisconsin landlord-tenant laws are constantly changing.  To help keep you up to date we offer prior attendees a $50 discount.

Sign up by going to the AASEW’s Landlord Boot Camp landing page where you can sign up online and pay via PayPal.

 

What you will learn at the Apartment Association’s 2012 Landlord Boot Camp

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, including:

  1. How to properly screen prospective tenants.
  2. How to draft written screening criteria to assist you in the selection process and protect you from discrimination complaints.
  3. How to comply with both federal and state Fair Housing laws including how to handle with “reasonable modifications”  and “reasonable accommodations” requests.
  4. How to legally reject an applicant.
  5. What rental documents you should be using and why.
  6. When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant.
  7. Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134.
  8. When you are legally allowed to enter your tenant’s apartment.
  9. How to properly draft an eviction summons and complaint.
  10. What to do to keep the commissioner from dismissing your eviction suit.
  11. What you can legally deduct from a security deposit.
  12. How to properly draft a security deposit transmittal / 21 day letter.
  13. How to handle pet damage.
  14. What to do with a tenant’s abandoned property and how this may affect whether or not you file an eviction suit.
  15. How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so).

. . .  and much more.  There will also be time for questions and answers.

You get all this for less than you would pay for an hour of an attorney’s time.

Last year’s AASEW Landlord Boot Camp was filled to capacity and we even had to turn a few people away.  So call early to reserve your spot.

Call the Association at (414) 276-7378, email membership@apartmentassoc.org or go to our Landlord Boot Camp landing page to sign up online and reserve your spot.

Remember that “landlording” is a business — so take the time to educate yourself on how to better manage your business and avoid costly errors!

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A Landlord’s Primer on “Reasonable Accomodations”

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

A reasonable accomodation 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 accomodations in rules, practices, policies or services that are associated with housing when such accomodations may be necessary to afford the person equal opportunity to use and enjoy housing, unless the accomodations 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 accomodations 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 accomodation.

If requested (and all other requirements are met) a landlord must make reasonable accomodations at any stage of the rental process, including the application process, screening process, during tenancy, post tenancy.  Therefore a reasonable accomodations 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 accomodations 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 accomodation request.  If there is no “nexus” then a landlord can legally decline to make the accomodation.

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 accomodation.

c.   Shows the relationship between the disability and the accomodation 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 accomodation is also readily apparent or known, then the landlord may not request any additional information.

A landlord can legally deny a request for reasonable accomodations 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 accomodation 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 accomodation 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 accomodations.

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 Accomodations Under The Fair Housing Act, that is a great resource for those landlords that have additional questions on this topic.

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