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Top 100 Frequently Asked Questions & Answers for Property Owners and Managers Section A: Disability Law 101 Question 68. What disability laws apply to housing? Fair Housing Act: The federal Fair Housing Act and local fair housing laws prohibit housing providers from discriminating against people because of their disability or the disability of anyone associated with them, and from treating people less favorably than others because of their disabilities. These laws also require housing providers "to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person(s) equal opportunity to use and enjoy a dwelling." In addition, these laws require that housing providers allow tenants to make reasonable modifications to units and common spaces in a dwelling. Finally, these laws include accessibility design and construction requirements for covered multifamily housing. Section 504 of the Rehabilitation Act of 1973: Section 504 prohibits discrimination based on disability in any housing, program or activity receiving federal financial assistance. Americans with Disabilities Act: In most cases, the ADA does not apply to residential housing. However, Title III of the ADA covers public and common use areas at housing developments when these areas are open to the general public (such as a rental office) or when they are available for use by the general public (such as a community room that you rent to non-tenants). Title II of the ADA prohibits discrimination based on disability in programs, services, and activities provided or made available by public entities. HUD enforces Title II when it relates to state and local public housing, housing authorities, housing assistance and housing referrals. Question 69. What is the difference between federal laws regarding disability and state and local laws? Under the federal laws, a disability must "substantially impair a major life activity." Washington state law has a broader definition of disability than federal laws. The Washington State Law Against Discrimination, RCW 49.60, defines disability as "the presence of a sensory, mental or physical disability when a condition is medically cognizable or diagnosable, exists as a record or history, or is perceived." A condition is a "sensory, mental, or physical disability" if it is an abnormality and is a reason why the person having the condition did not get or keep the housing in question, or was treated differently, or was discriminated against in other terms and conditions of housing. This state definition includes people with temporary disabilities. For example, a person with a leg injury who requires several weeks of recovery would be considered disabled under state law and should be given a temporary reserved parking space as an accommodation. Question 70. Who is considered a person with a disability under federal and state law? Under fair housing laws, the definition of disability includes people who have a current mental or physical disability. It also includes those who do not currently have a disability, but have a record or history of one. These laws also protect people if they have no disability, but if others regard or perceive them as being disabled, and treat them negatively because of that perception. Question 71. Who is not considered to have a disability? The following people are not considered to have a disability under fair housing laws:
Question 72. Can I market my accessible units to people with disabilities? Under the fair housing laws, you may affirmatively market your available accessible units to people with disabilities. Advertising that a unit is accessible is not only legal under the fair housing laws, it is encouraged. The fair housing agencies receive frequent calls from apartment managers asking how they can fill their accessible units. Contact your local fair housing agency for a list of resources to assist you in marketing your available accessible units. Question 73. What questions can I ask prospective tenants about disabilities? Generally, housing providers should only ask a person with a disability questions that are asked of all applicants or tenants. It's okay to ask questions such as:
Also, if a potential tenant is requesting a reasonable accommodation, a landlord can request verification of the person's need for the requested accommodation. Question 74. What questions should I avoid? You should not ask the following questions:
Question 75. What other ways can I welcome people with disabilities? Some disabilities are obvious and some are not, so let all applicants and tenants know that you will provide reasonable accommodations upon request. You may want to include a notice in your pre-printed application materials and in your tenant rules that states your willingness to provide reasonable accommodations. Develop a reasonable accommodations/modifications policy to distribute to your tenants. Train your staff on how to respond to reasonable accommodation requests in a timely and professional manner. For more detailed information, see the Sample Policy on Reasonable Accommodations available from the Fair Housing Agencies of Washington State. Finally, make sure that your complex meets the accessibility standards under the state and federal fair housing laws. For older buildings, make sure that your complex has an accessible leasing office and an accessible route from public transportation to your leasing office. Question 76. What is a reasonable accommodation? People with disabilities may have special needs due to their disabilities, so in some cases, simply treating them the same as others may not ensure that they have an equal opportunity to use and enjoy a dwelling. A "reasonable accommodation" is a change, adaptation or modification to a policy, program or service, which will allow a person with a disability to use and enjoy a dwelling, including public and common use spaces. Examples of reasonable accommodations include providing rental materials in alternate formats such as large print, providing a reserved accessible parking space near a tenant's apartment, or allowing a tenant to have a service animal in a "no pets" building. See Appendix C for a list of common accommodations. For information about who pays for accommodations, see Question 91. For more detailed information, see the Sample Policy on Reasonable Accommodations available from the Fair Housing Agencies of Washington State. Question 77. How do I know if someone needs an accommodation? The duty to accommodate arises when the housing provider has knowledge that a disability exists and that an accommodation may be required for the disabled person to use and enjoy the housing. Generally, the applicant or tenant must make a request for an accommodation. Fair housing disability laws do not prescribe a uniform procedure for requesting a reasonable accommodation or modification. To make a request, an individual does not need to mention fair housing disability laws or use the phrase "reasonable accommodation." In general, a tenant or applicant should make clear to the housing provider that he or she is requesting that an exception, change or adjustment be made to a rule, policy or practice because he or she has a disability. The tenant should describe what type of accommodation is needed and explain the relationship between the requested accommodation and the disability. Although not required by fair housing disability laws, it is helpful if these requests are made in writing, so there will be documentation of the request. It is advisable for a housing provider to establish a process for responding to requests for accommodations and/or modifications. Keep in mind that a tenant cannot be required to use a specific form for such requests, and a housing provider cannot refuse to provide an accommodation or modification just because the tenant has not used the provider's form. Question 78. If a tenant requests an accommodation, can I require documentation that the tenant really needs the accommodation? You may request the tenant to provide written verification from the tenant's health care or mental health provider that the tenant has a disability and needs the accommodation requested (the provider need not be an MD). You can require proof that the tenant is disabled, but cannot require the tenant to provide specific information about the disability. Question 79. How do you tell if a request is "reasonable" or not? An accommodation is reasonable if it is related to the tenant's disability needs, is not an undue administrative or financial burden for the housing provider, and does not fundamentally alter the housing and services the housing provider offers. All requests for accommodation must be considered and should be analyzed on a case-by-case basis. This should be an interactive process between the housing provider and the tenant. If the tenant's proposal is not feasible or is an undue burden, the housing provider can suggest alternative accommodations that meet the tenant's needs; however, the tenant is usually in the best position to know what accommodation will meet his or her needs. Question 80. A tenant who recently began using a walker to get around has requested a move to a ground floor apartment. Must I allow her to move? If a ground floor unit is available, you should provide it to the tenant as a reasonable accommodation. If no unit is available, some other options could include giving the tenant first choice of moving into the next available ground floor unit or allowing her to break her lease to move to another complex that meets her needs. Question 81. We have a "no pets" rule and a tenant with a disability has asked to keep a "service animal." What do I need to know about these animals? It is a reasonable accommodation for housing providers to allow tenants with disabilities to live with service animals in order to meet their disability-related needs. A service animal (also referred to as an assistance animal) usually is defined as "any animal that is individually trained to do work or perform tasks for the benefit of a person with a disability." Fair housing laws also consider "emotional support" or "companion" animals to be a type of service or assistance animal.
Question 82. An otherwise qualified applicant asked to have a Rottweiler as a service animal, but our insurance company will not insure certain breeds, including Rottweilers. What should we do? You should ask your insurance provider to make a reasonable accommodation in their policy under the fair housing laws. Request the insurance company to waive their blanket prohibition of a certain breed and instead to make an individual assessment of this service animal's behavior. If there is no evidence that an individual service animal is dangerous, the insurance company may have a hard time defending a denial of a reasonable accommodation request. Both you and the applicant could file fair housing complaints against the insurance company. If found in violation of the fair housing laws, the insurance company could be responsible for any damages that you and the applicant incur waiting for them to respond to the request. Question 83. A tenant with a disability has requested a reserved accessible parking space in our complex that has no assigned parking. Must we provide this? If you provide parking for tenants, it is a reasonable accommodation to provide a reserved accessible parking space when a tenant with a disability requests it. Here are basic guidelines:
Question 84. I just learned that a 13-year-old at our complex who frequently swims with his 15-year-old brother has epilepsy. I sent a notice to his mother informing her that her son may not swim without her or another responsible adult present. Is that okay? Under Washington state administrative law, a 13- and 15-year-old are allowed to use the pool together without an adult present. It is discriminatory to apply apartment rules differently to tenants with and without disabilities for any purpose other than to provide a reasonable accommodation so that a person with a disability may equally use and enjoy the dwelling. Managers should not formulate special rules for people with disabilities based upon perceived stereotypes or a belief that the person with a disability is an increased liability. Question 85. I've received noise complaints about a child with a developmental disability. What steps can I take to resolve this issue? Housing providers have a right to establish reasonable noise regulations for the comfort and peaceful enjoyment of all tenants. If the noise occurs during the day and is no louder than that made by other tenants (or the typical child), it would be discriminatory to treat this child differently than others. However, if the noise is excessive or occurs after hours, you can advise the family that they must obey the noise policy. If they request some time to pursue an intervention to assist them with keeping the noise down during quiet hours, you should allow that as a reasonable accommodation. Question 86. Tenants are complaining about the odd and threatening behavior of another tenant. To keep them happy, we issued him a violation notice. His sister then notified us that he has a psychiatric disability. What should we do? You should determine whether the tenant's behavior is only odd or whether it actually violates a tenancy rule. If the tenant is merely eccentric, he has broken no rules. You should issue a violation notice only when a rule has actually been violated. If the tenant's behavior is not only odd, but violates some rule (for example, he disturbs other tenants by knocking on their doors in the middle of the night), then you may need to consider the effect, if any, of the tenant's disability on his behavior. If his disability is the cause of his behavior, it may be appropriate for you to inquire whether he or his sister have taken steps to minimize or eliminate the odd behaviors that result in rule violations. However, tenants also complained of "threatening" behavior. Fair housing laws do not require that a dwelling be made available to an individual whose tenancy would constitute a "direct threat" to the health or safety of other individuals. You can consider safety factors in deciding what to do and should determine whether the tenant's behavior is a direct threat. Please note that a direct threat is a significant risk of substantial harm to the health or safety of others that cannot be eliminated or reduced to an acceptable level through interventions allowed by a reasonable accommodation. This threat must be real and may not be based on generalizations or stereotypes about the effects of a particular disability. If the threat cannot be minimized or eliminated, you have a right to ask the tenant to leave. However, if the tenant's family is pursuing treatment and/or other support interventions, you should allow them time to put those plans into place as an accommodation before asking him to leave. If the tenant's behavior poses an imminent direct threat to others while the plan is being put into place, appropriate authorities can be called to remove him. Question 87. Even though we've accommodated him several times, a tenant with a disability keeps making accommodation requests. How many accommodations do we have to provide? An individual with a disability can request reasonable accommodations or modifications whenever they are needed. For example, requests may be made when an individual is applying for housing, when entering into a rental agreement, while occupying housing, and even during an eviction process. Individuals who become disabled during their tenancy may request accommodations, even if they were not disabled when they moved in. Evaluate each request in a timely and professional manner, and document your interactions with the tenant. Question 88. After we served a tenant with a summons for an unlawful detainer action, he asked for a reasonable accommodation and expects us to work with him to help him remain a tenant. Do we have to do this at such a late stage? Housing providers are required to provide reasonable accommodations at all points in the housing process—even at the eve of a termination of tenancy. Keep in mind that people with disabilities are not obligated to reveal their conditions and they might not do so unless they need an accommodation. It may be that a tenant realizes that a reasonable accommodation is necessary only after he or she receives an eviction notice. It's a good idea to let applicants and tenants know that you will provide reasonable accommodations upon request. You can include a notice on your application form, in tenant rules and even with your notices to comply or vacate that states your willingness to discuss accommodations that might address the rule violations that led to the eviction notice. Question 89. Are there any circumstances when I don't have to provide an accommodation or modification? The request must not impose an undue financial and administrative burden on the housing provider. Note that "undue burden" usually takes into consideration the housing provider's entire resources. For example, if an applicant who uses a walker prefers a third-story apartment to a ground floor unit in a 1926 walk-up building, the housing provider does not have to install an elevator if such a modification is cost prohibitive. The requested accommodation or modification must not require the housing provider to make a fundamental alteration in the nature of the provider's operations. For example, if a tenant with a disability cannot do his own housekeeping and the housing provider does not supply housekeeping for tenants, a request for such services would not be reasonable. Note that where a particular requested accommodation or modification is not reasonable, the housing provider is still obligated to provide other requested accommodations or modifications that do qualify as reasonable. A "reasonable modification" is a physical change made to a tenant's living space or to the common areas of a complex which is necessary to afford a tenant with a disability full enjoyment of the housing. For more detailed information, see the Sample Policy on Reasonable Accommodations available from the Fair Housing Agencies of Washington State. Question 91. Who pays for disability accommodations and modifications? The housing provider is responsible for ensuring general access to the facility and meeting minimum accessibility standards. Moreover, fair housing disability laws require that in making an accommodation, a housing provider is required to bear costs that do not amount to an undue financial and administrative burden. This means that a housing provider may be required to spend money to provide legally required reasonable accommodations to rules, policies or practices, most of which are no or low cost. Generally, the tenant is expected to cover the expenses of making reasonable physical modifications to a property. However, if the property receives federal funds under Section 504, the housing provider usually pays, unless they can prove financial or administrative hardship. The hardship is determined by looking at the cost of the modification in light of the total budget of the complex. Question 92. If a tenant makes a modification, how can I be sure it's done in a professional manner, with proper building permits? A housing provider may condition permission for a modification on the renter's providing a reasonable description of the proposed modifications as well as reasonable assurances that the work will be done in a professional manner and that the renter will obtain any required building permits. Question 93. Can I require that the modifications be removed when a tenant with a disability moves out? Where it is reasonable to do so, a rental housing provider may condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. However, the tenant need not restore the interior to its previous condition when the modifications that were made would not interfere with the next tenant's use and enjoyment of the premises. Question 94. Can I charge a tenant with a disability an increased security deposit to cover the costs of restoring a unit? The housing provider may not require an increased security deposit for tenants who wish to make modifications, but the provider may negotiate an agreement that the tenant pay into an interest-bearing escrow account, over a reasonable period, an amount of money not to exceed the cost of the restorations. The interest in any such account shall accrue to the benefit of the tenant. Question 95. Our building was built in the 1950s. Do I have to let a tenant who uses a wheelchair modify his unit? Yes, this tenant may need the kitchen counter tops lowered, the interior doorways widened and bathroom walls reinforced to install grab bars. You may ask for a description of the proposed modifications as well as reasonable assurances that the work will be done in a professional manner and that any required building permits will be obtained. To ensure restoration, you may also have the tenant pay into an interest-bearing escrow account, over a reasonable period, an amount of money not to exceed restoration costs. At move out you may require the tenant to raise the kitchen counter tops and remove the bathroom grab bars; however, you should not require the tenant to make the doorways narrow again or to remove the wall reinforcement. Question 96. What are the benefits of accessible housing? Accessible housing is not only mandated by federal and state laws—it makes a property more marketable and benefits everyone. When housing is accessible, prospective tenants, current tenants, guests—with or without disabilities—have a safer and more convenient environment in which to live. Accessibility features also allow housing providers to adapt to the changing needs of their tenants, many of whom wish to age in place. In Washington State, housing providers should be familiar with three basic laws that address accessible housing: ADA, Title III; the Washington State Barrier-Free Design Regulations; and the FHA. Question 97. My complex was built before 1976. What accessibility standards apply? Title III of the ADA applies to public areas at your complex, including rental offices, community rooms that are available to the public, and any route of travel from public transportation to those areas. You should remove barriers that impede the access or use of these areas for a person with a disability where such removal is "readily achievable." Readily achievable means "easily accomplishable and able to be carried out without much difficulty or expense." Whether an action is readily achievable is determined on a case-by-case basis. Some of the factors considered are the nature and cost of the action needed, and the overall financial resources of the housing provider. If you are planning any additions or alterations to your complex, you should refer to the state and federal laws for new construction discussed below to make sure you are complying with the applicable standards. Question 98. What are the general access standards for buildings constructed after 1976? The Washington State Barrier-Free Design Regulations were adopted in 1976. These regulations established accessibility standards in the common areas and also added access standards for individual dwelling units. If your complex was constructed after 1976 and has 11 or more units, at least 5% of the units, with a minimum of one, must meet what is presently designated as a "Type A" dwelling unit. "Type A" dwelling units require greater maneuvering space in the kitchens, bathrooms and doorways, to better accommodate wheelchair users. Question 99. What additional standards apply to buildings built after March 13, 1991? Your complex is covered under the FHA if it has four or more units and was constructed for first occupancy on or after March 13, 1991. Under the FHA, all units in an elevator building must be accessible and all ground floor units in a non-elevator building must be accessible. Under the FHA, buildings built after March 13, 1991 must have:
Question 100. What standards should I follow for buildings built after July 1, 1992, in Washington state? If your building was constructed after July 1, 1992, you should look primarily at the current Washington State Barrier-Free Design Regulations, codified under WAC 51.40. Effective July 1, 1992, these regulations incorporated the FHA and the ADA. For example, under the current regulations all units in buildings with four to ten units must have certain minimum access features. For buildings with 11 or more units, the previous 5% accessible "Type A" units are required, but the remaining units must also have certain minimum access features (designated as "Type B" units). If you have questions about fair housing laws and enforcement, contact the King County Office of Civil Rights at 206-296-7592 or 206-296-7596 TTY. Your comments about this Web site Updated: Dec. 28, 2004 |
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