Introduction

The Fair Housing Amendments Act (FHAA) was signed into law on September 13,1988 and became effective on March 12,1989. The Act amends Title VIII of the Civil Rights Act of 1968 which prohibits discrimination on the basis of race, color, religion, sex or national origin in housing sales, rentals or financing. The FHAA now extends this protection to persons with a disability and families with chil­dren.

This new law is intended to increase housing op­portunities for people with disabilities. However, individual citizens must come forward with con­cerns, file complaints or sue if they believe their rights have been violated. The government has no other way of detecting discrimination as it occurs. As a result, it is important to understand this new legislation and how to put it to work on your behalf. Know Your Fair Housing Rights will help both per­sons with disabilities and advocates better understand the FHAA. Specifically, this brochure will explain: What does this law mean to you? Who is protected by this legislation? How do I make the law work for me?

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Who is Protected?

The FHAA added "persons with handicapping condition," along with families with children, as protected classes to this law. The legislation adopts the definition of "handicapping condition" found in Section 504 of the rehabilitation Act of 1973, as amended. This definition includes any person who actually has a physical or mental impairment, has a record of having such an impairment, or is regarded as having such an impairment that sub­stantially limits one or more major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working.

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Types of Housing Facilities Covered

This law pertains to all types of housing including, but not limited to, condominiums, cooperatives, mobile homes, trailer parks, rime shares and any unit which is designed or used as a residence. It also includes any land or vacant property which is sold or leased as residential property. One of the few exceptions to the law is residences with four or less units where the owner lives in one of the units.

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Prohibited Actions

The FHAA prohibits a wide array of activities which discriminate against persons with disabilities and families with children in the sale or rental of housing. The following specifically outlines those actions which are illegal:

• Refusal to sell or rent a dwelling unit when a bona fide offer has been made, where the refusal is based on race, color, religion, sex, handicap, familial status or national origin.

• Imposing different terms and conditions or treating people differently with the provision of service because of race, color, religion, sex, handicap, familial status or national origin.

• Discouraging an individual from living in a com­munity or neighborhood, if the restriction is based on race, color, religion, sex, handicap, familial status or national origin. Tills activity is frequently referred to as "steering."

• Advertising, posting notices or making state­ments in such a way as to deny access to an individual if that denial is based on race, color, religion, sex, handicap, familial status or national origin.

• Misrepresenting the availability of a dwelling because of the applicant's race, color, religion, sex, handicap, familial status, or national origin.

• Blockbusting by encouraging the sale or rental of a dwelling by implying that people of a certain race, color, religion, sex, handicap, familial status or origin are entering the community in large numbers.

• The FHAA expands the traditional list of prohib­ited activities to actions which relate directly to discrimination based on disability. The following are examples of such activities:

• It is illegal for a landlord to refuse to allow a tenant with a disability to make modifications, at the tenant's expense, which would permit the tenant to fully enjoy the premises. The landlord can, where reasonable, require the tenant to re­store tile interior of the premises to the condition it was in prior to the modification. Premises are defined to include interior and exterior parts. Therefore, refusing to permit a tenant to make modifications to a lobby, entryway, parking lot or laundry room, is also discriminatory. This is discussed in greater detail in the "reasonable modifications" section

• Asking a question designed to determine whether an applicant or anyone associated with that applicant has a disability is unlawful under FHAA. However, the Act docs provide for certain inquiries, provided they are asked of all applicants whether or not they have a disability. A housing provider may ask:

• If an applicant can meet the financial require­ments of ownership or tenancy;

• If an applicant is eligible for housing that is available only to persons with a disability or a  specific disability;

• If a person is eligible for a priority available only to persons with a disability or a specific disability,

• If a person is a current substance abuser;

• If an applicant has ever been convicted of the illegal manufacture or distribution of a control­led substance.

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REASONABLE MODIFICATIONS

FHAA requires two types of reasonable modifications to make existing housing more accessible to persons with disabilities. These modifications consist of structural and policy changes.

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Structural Modifications

Housing providers must permit reasonable modifications of existing premises if such modifications arc necessary for a disabled person to be able to live in and use the premises. The cost of the modification is to be paid by the disabled person. Modifications may be made to the interior of the individual's unit as well as any public and common use areas of a building, including lobbies, hallways, and laundry rooms.

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Modifications may be requested in any type of dwelling; however in a rental situation, the landlord may reasonably condition permission for modification on the following:

• The renter agreeing to restore the interior of the premises to the condition chat existed before the modification, ordinary wear and tear excepted;

• The renter providing a reasonable description of the proposed modifications; and

• The renter providing reasonable assurance that the work will be done in a workmanlike manner with all applicable building permits being obtained.

A renter should be aware that a landlord must not increase any customarily required security deposit. However, where it is necessary to ensure with reasonable certainty that funds will be available for any necessary restoration at the end of the tenancy, the landlord may require that the tenant pay a reasonable amount of money not to exceed the cost of the restorations, into an interest bearing escrow account, over a reasonable period of time. The interest earned on the account accrues to the benefit of the tenant. This means that when the disabled tenant moves and the unit is restored to its original condi­tion, any money left in the account is given to the tenant.

As a result of these rules, FHAA has, in effect, created three classifications of modifications:

• Modifications which do not have to be restored;

• Modifications which need to be restored to the original condition but do not require establishment of an escrow account; and

• Modifications which need to be restored and are relatively expensive, therefore an escrow account may be required.

An example of the first modification category would be widening a bathroom door which does not affect the usability of any other space, such as a closet. Here a wider door would not affect the next tenants' use of the apartment. A modification which may fall into the second category would be the removal of a base cabinet under the kitchen sink. In this situation, the next tenant would want the storage space under the sink, therefore the tenant with a disability would be required to restore the cabinet. The cost to replace one cabinet would not be tremendous, so an escrow account would probably not be required. If all the cabinets in the kitchen were replaced and the counter lowered, which is obviously more expensive, an escrow account may be required. The traditional example of a situation where an escrow account may be needed is when a tenant removes the bathtub and replaces it with a roll-in shower.

Remember, although a landlord may condition permission, he/she cannot deny permission for a disabled tenant to modify the apartment to meet his/her needs.

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Modifications in Rules, Policies, or Services

FHAA requires that the housing provider make reasonable modifications in rules, policies, practices or services necessary to give persons with disabilities equal opportunity to use and enjoy the dwelling. Examples of modifications that would be required include:

Allowing a tenant who is blind to have a seeing eye dog even though the building has a "no pet" policy.

• Reserving a parking space for a tenant with a mobility impairment which is accessible and close to an accessible route when other tenants must park on a "first come first served" basis.

• Waiving a rule which allows tenants only to use laundry facilities in order to accommodate a tenant with disabilities who cannot gain access to the laundry facilities by allowing his/her friend or aide to do the laundry.

In short, any policy or rule which denies persons with disabilities access to a facility or service may be a violation of FHAA.

Accessibility Requirements in New Construction

Newly constructed multi-family dwellings with four or more units must provide basic accessibility to persons with disabilities, if the building was ready for first occupancy on or after March 13, 1991. The design features apply to all units in buildings with elevators and to ground floor units in multilevel buildings without elevators. The following are the required accessible design features:

• At least one building entrance must be on an accessible route.

• All public and common use areas must be readily accessible.

• All doors into and within all premises must be wide enough to allow passage by persons in wheelchairs.

• All premises must contain an accessible route into and through the dwelling unit.

• All light switches, electrical outlets, thermostats and environmental controls must be located in an accessible location.

• Reinforcements in the bathroom walls for later installation of grab bars around toilet, tub, and shower must be provided.

• Usable kitchens and bathrooms must be provided so that a person who uses a wheelchair can maneuver about the space. Although FHAA docs not include any exceptions to these requirements, HUD has determined that the provision that at least one building entrance be on an accessible route may be exempted if it is impractical to do so because of terrain or unusual site characteristics. An example of a situation where providing an accessible route would be impractical is a waterfront site where a building is constructed on stilts. The burden of proving impracticality is on the designer or builder of the housing facility. HUD has indicated that only infrequent cases will qualify for this exception.

In an effort to provide technical guidance to build­ers, HUD issued the Fair Housing Accessibility Guidelines. The Guidelines are not mandatory, but simply provide technical guidance to assure a mini­mum level of accessibility.

Complaint Process

Filing a Complaint

Any person who believes he/she has been discrimi­nated against based on disability may file a complaint with the nearest HUD office. Complaints must be filed within one year from the date the discriminatory act took place and may be filed in person, over the telephone, or by mail. If the information is given over the telephone, the HUD office will put the complaint in writing and send it to the complainant for signature. Some states and localities have Fair Housing Laws which are equal to the FHAA and are deemed "substantially equivalent." If so, the agency assigned co enforce the state or local law may receive the discrimination complaint. If an aggrieved party is unsure of whether such a state or local law exists, he/she should tile the complaint with the HUD office. HUD will refer it to the state or local agency if appropriate.

Each complaint must contain the following information:

• The name and address of the complaining party;

• The name and address of the person who committed the alleged violation;

• A description and the address of the dwelling involved; and

• A concise statement of the facts, including pertinent dates.

Also, a complainant may bring an action directly in federal district court within two years from the date the discriminatory act took place. FHAA docs not require the exhaustion of administrative remedies before a case is filed in court.

Investigating the Complaint

Complaints that are not referred to a "substantially equivalent" state or local agency must be investi­gated by HUD within 100 days to determine whether reasonable cause exists to believe that a discriminatory housing practice has occurred. If HUD does not complete the investigation within the 100 days, HUD must notify, in writing, the people involved in the complaint and state the reason for the delay.

Also, within the 100 day period, HUD is directed to engage in conciliation (voluntary) efforts with the parties. If the case is not conciliated and if a reasonable cause determination is made, HUD will issue a formal charge on behalf of the complainant.

Enforcement

Once a formal charge has been issued, either party has 20 days to choose to have the case brought in federal district court, where the complainant will be represented by the Justice Department. If the case is not removed to court, it will proceed through a prehearing discovery phase and then be presented before an Administrative Law Judge (ALJ) ap­pointed by HUD within 120 days after the charge is filed. The ALJ is required to make a decision within 60 days after the hearing. The ALJ's decision is subject to review by HUD and ultimately by the courts.

Remedies and Damages

When making a determination of whether to remove the case to federal district court or pursue the administrative remedy with HUD, a party should be aware that the remedies are different. Both forums provide for injunctive relief, such as ordering the housing provider to allow for the modifications or to change rules and policies, and actual damages, such as out-of-pocket expenses, attorney's fees and emotional distress. The difference is the monetary award. The court may award punitive damages in whatever amount is appropriate, whereas the ALJ can only award civil penalties, which are paid to the government, to vindicate the public interest. The amount of the civil penalties is limited by the law to 
$10,000 for a first offense, $25,000 for a second offense committed within a five year period, and $50,000 if two or more offenses have been committed within seven years of the charge. The ALJ is not authorized to award punitive damages.

CASE HISTORIES

Since 1988, several cases have been brought to court under the amended Fair Housing Act (FHA), 42 U.S.C. 3601 et seq. The case synopses presented here include the issues of zoning, who is considered "disabled," and policies determining who is eligible to be a tenant. Our research did not uncover any cases which concerned a disabled tenant's request for modifications or the new construction requirements.

Definition of "handicapped"

Baxter v. City of Belleville, 720 F. Supp. 720 (S.D. 111. 1989).
The City of Belleville refused to grant Baxter a special use permit in order to open a residence intended to house persons with Acquired Immune Deficiency Syndrome (AIDS). Baxter claimed that the city violated his rights under the Fair Housing Act (FHA) and sought injunctive relief. The Court had to determine "handicapped" within the mean­ing of the FHA. The Court found that the inability to reside in a group home due to the public misap­prehension that HIV positive persons cannot interact with non-HIV infected persons adversely affects a major life activity, therefore persons who are HIV positive are "handicapped" within the meaning of the FHA.

U.S. v. Southern Management Corporation, 955 F.2d 914 (1992).
The United States brought this action under the Fair Housing Act (FHA) claiming that the Southern Management Corporation's refusal to rent to the agency which runs a drug rehabilitation program constituted illegal discrimination against handicapped individuals. The Court had to determine if the clients, who were recovering addicts and other former drug users who had completed one drug-free year, came within FHA's definition of "handicapped." The Court found that Congress intended to recognize that addiction is a disease from which, through rehabilitation effort, a person may recover, and that an individual who makes the effort to recover should not be subject to housing discrimination based on society's fears and prejudice associated with drug addiction. Therefore, the Court held that the rehabilitative clients were "handicapped" and were covered by the FHA.

Zoning and Restrictive Covenants

Human Development of Erie v. The Zoning Hearing Board of Millcreek Township, Commonwealth Court of Pennsylvania No. 1735 CD. 1989, aff'd on other grounds.
The trial court found that the amendment to the Millcreek Township Zoning Housing Board which defined a group home as a dwelling where room and board is provided to not more man five permanent residents (including the disabled and the elderly) violated the recently amended Fair Housing Act. The zoning amendment impermissibly discrimi­nated against persons with disabilities by decreasing the availability of housing.

Casa Mane, Inc. v. Superior Court of Puerto Rico, 752 F. Supp. 1132 (D. Puerto Rico 1990).
The neighbors sought and obtained a state court judgment ordering the owners to close the home for elderly disabled tenants on the grounds that operation of the home violated a restrictive covenant forbidding this particular use. A group of the elderly disabled residents joined with the owner as plaintiffs to stop the enforcement of the judgment on the grounds that they are being discriminated against in violation of the Pair Housing Act. The plaintiffs demonstrated that the original action was brought because the neighbors believed the presence of this type of residence might lower property values, would cause people to think about death and would hinder the spontaneity of the neighborhood children. The court found that plaintiffs produced sufficient evidence to show defendant's intent to discriminate against the elderly disabled residents.

United States v. Scott, 1992 U.S. Dist. Lexis 4618. 
The U.S., on behalf of sellers of a residential property, brought (his action against various defendants for violations of the Fair Housing Act (FHA) alleging interference with the Haberers' sale of their home to Development Services of Northwest Kansas (DSNWK), an organization that operates group homes for disabled individuals. The defendants sought to block the sale of the Haberer laborer home to DSNWK because they feared that a residence for persons with disabilities would cause a depreciation in property values. The court held that by attempting to enforce a restrictive covenant to prevent persons with disabilities from residing in their neighborhood, the defendants had otherwise made unavailable or denied a dwelling to DSNWK because of the disabilities of persons intending to reside in the dwelling after it is sold, in violation of the FHA.

Ability to Live Independently

Cason v. Rochester Housing Authority, 748 F. Supp. 1002 (W.D.N.Y. 1990).

Cason and other applicants with disabilities brought an action against the Rochester Housing Authority (RHA) for violation of the Fair Housing Act (FHA). RHA's eligibility standards require an evaluation of an individual's ability to live inde­pendently, which included an in-home evaluation and release of confidential medical information. Cason received a letter from RHA denying her application because of her need for a wheelchair, her ability to only walk short distances with the aid of a walker, her reliance on adult diapers, and her need for 10 hours of daily aide service, in short, her inability to live independently. The court found that RHA's application process negatively affects individuals with disabilities because housing is denied only to applicants with disabilities on the basis of an inability to live independently. Persons without disabilities were not evaluated on their ability to live independently and were not denied housing on such grounds. Therefore, the court found the eligibility standards were a violation of the FHA.

Direct Threat to Health

Association of Relatives & Friends of AIDS Patients v. Regulations & Permits Administration, 740 F. Supp. 95 (D. Puerto Rico 1990).
This case involves a dispute over plans to establish a hospice for patients in the terminal stages of Acquired Immune Deficiency Syndrome (AIDS). The application for a special use permit to open an AIDS hospice was denied on the basis that the land on which the hospice was located is zoned exclusively for agricultural purposes. Plaintiffs alleged that this reason was a pretext and that the denial was based on unfounded speculations about threats to safety in violation of the Fair Housing Act (FHA). The defendants took the position that the FHA does not prevent an individual from denying housing to persons with disabilities in order to preserve the health and safety of the community. However, the court found that there is absolutely no evidence supporting the conclusion that the tenancy of ten terminal AIDS patients carries a significant threat to the community. To the contrary, HIV is not readily transmissible through flood, mosquitoes or casual contact, and the pres­ence of the hospice poses no risk to the community at large. Therefore, the denial of the special use permit cannot be justified on public health grounds.

QUESTIONS AND ANSWERS

Can a landlord ask specific questions about my disability?

No. However, a landlord of subsidized housing can ask questions about your disability only if the information is used to determine whether you are eligible for housing designated specifically for persons with disabilities or if you are eligible for a federal preference because of your disability.

I have recently rented an apartment in a multi-family building and the landlord is allowing me to modify my bathroom by installing a roll-in shower and widening the doorway but has refused my request to ramp the main entrance to the building. Is this legal?

No. A landlord cannot refuse to allow a tenant with a disability to make modifications, at the tenant's expense, to the tenant's unit as well as to common use areas. The landlord can require the tenant to restore the roll-in shower back to its original condition (tub or shower) but cannot require the door to be narrowed. Also, any modification to the common use areas need not be restored at the end of tenancy. (Note: The landlord cannot require the modification to exceed a reasonable cost, such as requiring more expensive material, but can only require that the work complies with the building code.)

I have just applied for an apartment in a multi­story building with an elevator and the managing agent has informed me that I will have to wait for a ground floor unit because of my child's disabil­ity. I do not want to live on the ground floor. Can the agent limit my choices?

No. The management may not maintain policies which limit the housing choices of persons with disabilities.

My Cooperative Board has refused to allow my husband, who uses a wheelchair, to use the swim­ming pool despite his ability to access the pool independently. What action can we take?

Your husband has a right to use the swimming pool or any other facility available to all tenants. The board cannot limit your husband's use of the pool based on their perception that disabled individuals cannot participate in certain activities. If the board continues to deny access, you can file a discrimination complaint with HUD.

Can a landlord require an additional security de­posit because I am disabled?

No. A landlord may require a tenant with disabilities who makes modifications to his unit which would affect the next tenant's use of the dwelling to establish an interest bearing escrow account equal to the restoration cost.

I recently became blind and the building I have been living in for years has a "no pet" policy. Can they forbid me from getting a dog? 

If your dog is a guide or service dog, your landlord must waive the policy and allow you to have a guide or service dog.

Can a building manager ask me how I will function in my apartment? Specifically, can he ask how I will cook, clean, throw out the garbage, or open the doors and windows?

No. A manager cannot ask questions which pertain to your ability to live independently or how you will accomplish certain tasks. However, he/she may ask questions concerning your ability to pay rent and your past history as a tenant, provided he asks these questions of all applicants.

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Are townhouses covered by the FHAA?

A person with a disability cannot be denied an opportunity to buy or rent a townhouse. However, HUD has taken the position mat townhouses do not meet the definition of a multi-family dwelling, and therefore the accessible construction guidelines do not apply. If a person with a disability is buying or renting a townhouse, the developer or owner cannot refuse to allow him/her to make modifications at his/her own expense.

I believe I have been discriminated against by a public housing project. Should I file a discrimination complaint under the FHAA or Section 504 of the Rehabilitation Act?

Because this is a housing project which receives federal money, you can file a complaint under either FHAA or Section 504. Under the FHAA, you can seek monetary relief and force the landlord to allow you to make modifications at your own expense. However, under Section 504, the landlord could be required to pay for the modifications.

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General Information
Office of Fair Housing & Equal Opportunity
Room 5116
Department of Housing & Urban Development 
451 Seventh Street, S.W. 
Washington, D.C. 20410-2000 
(202) 708-2878

Regional Offices:

Region 1 - BOSTON (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont) 
HUD - Fair Housing and Equal Opportunity (FHEO) Boston Federal Office Building, 
10 Causeway Street
Boston, Massachusetts 02222-1092 (617) 835-5304

Region II - NEW YORK (New Jersey, New York, Puerto Rico, Virgin Islands)
HUD - Fair Housing and Equal Opportunity 
(FHEO) 26 Federal Plaza 
New York, New York 10278-0068 
(212) 264-1290

Region III-PHILADELPHIA (Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia) 
HUD Fair Housing and Equal Opportunity 
(FHEO) Liberty Square Building 
105 S. 7th Street 
Philadelphia, Pennsylvania 19106-3392 
(215)597-2338

About EPVA

Eastern Paralyzed Veterans Association (EPVA) is a chapter of Paralyzed Veterans of America (PVA). EPVA has over 2,000 members, primarily in New York, New Jersey, Pennsylvania and Connecticut. Headquartered in Queens, New York, EPVA oper­ates six offices, including Rill service regional offices in Buffalo and Philadelphia. EPVA is a non-profit veterans service organization. Our membership is open to all veterans with a spinal cord injury or disease.

EPVA's programs include: Administration, Advocacy, Architecture, Benefits Service, Communications, Hospital Liaison, Legislation, Library and Information Services, Public Affairs, Recreation, Research and Education, Social Services. Sports and Wheelchair Repair.

The following additional publications and items are available, free of charge from the Eastern Paralyzed Veterans Association, 75-20 Astoria Blvd., Jackson Heights New York 11370-1177, or by calling our toll-free hotline, 1-800-444-0120

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