Exceptions To Policies, Services or Practices: Uncommon Requests for Reasonable Accommodations

You are familiar with common reasonable accommodation requests.  Everyone knows that a blind resident can have a guide dog.  However, the multi-family industry still struggles with reasonable accommodation requests that are less common.  This month we analyze an uncommon reasonable accommodation request made by a prospective resident.

The prospective resident is deaf.  During the application process, the deaf prospect indicated that he was having difficulty understanding the lease.  The prospect had questions about the lease documents, and wanted certain provisions of the lease explained.  The prospect requested that the community obtain and pay for a sign interpreter to assist with his ability to understand the lease, and to answer his questions.

We advised the client to grant the request if not prohibitively expensive.  We instructed the client to contact the applicant to determine if the applicant had a specific interpreter in mind.  If the applicant wasn’t requesting a specific interpreter, we instructed the client to locate an interpreter.  We were able to find a host of potential interpreters on the internet in less than five minutes, and provided this information to the client.  Because a sign interpreter would charge two hundred dollars or less to perform this service, we advised the client to grant the request.

Some may have fallen into the trap that the applicant was not entitled to an interpreter because the request was made during the application process, or because the request had nothing to do with the applicant’s residency.  Fair Housing laws are clear.  An applicant can make a reasonable accommodation request during the application process.  A reasonable accommodation is a request for an exception to a rule, policy, practice, or service because the disabled individual needs an exception to have an equal opportunity to use and enjoy the apartment.  If a deaf applicant can’t ask questions about a lease, the deaf applicant is denied the same opportunity non-disabled individuals have during the leasing process, and thus the same opportunity to use an apartment.

The courts have decided countless cases involving reasonable accommodations.  Unfortunately, no court has ever published an opinion on this issue.  A search of the HUD Fair Housing Administrative Law Database (HUD fair housing decisions) revealed that HUD had never issued a fair housing administrative decision directly on point.  Thus, the outcome of the applicant’s request turned entirely on the legal requirements set forth in the Fair Housing statute.

The legal requirements for granting any request for a reasonable accommodation can never be discussed too much.  One, is the resident disabled as defined by Fair Housing laws.  Two, is the accommodation necessary (is there a relationship between the request and the resident’s disability).  Three, is the request reasonable (practical and feasible).  Four, does the request create an undue financial or administrative burden on the housing provider?  Five, does the request require the housing provider to provide services that the provider does not normally provide?

The applicant met the first legal requirement of being disabled as defined by Fair Housing laws.  The applicant’s ability to communicate about the lease was impeded by his disability.  Without a sign interpreter, the resident was unable to understand the lease on the same basis as non-disabled applicants.  Some research indicates that it is often difficult for deaf applicants to read applications because eighty percent of all deaf applicants cannot read English above the fifth grade level.  The applicant needed the accommodation and the accommodation was directly related to the applicant’s disability.

Remember, a reasonable accommodation request can ask for an exception to a “service”.  At issue in this request was whether the community regularly provides the service of assisting prospective residents in understanding the lease.  Because it is standard industry practice for leasing agents or other onsite personnel to assist residents in the leasing process by reviewing and explaining leases, the answer to this question is YES.  Because the industry regularly explains leases to applicants, the deaf applicant was not asking for the community to provide a service not normally provided to other applicants.

An argument could be made that communities do not normally provide “sign interpreter” services, but this begs the question.  The policy and practice is to explain leases and to answer questions.  Normally, this is done verbally, or by reading lease provisions.  Because the applicant is deaf, this didn’t work.  For this reason the applicant asked for an interpreter or an “exception” to this policy, practice, or service of explaining leases to prospective residents.  An exception to a policy, practice, or service is the definition of a request for a reasonable accommodation.

Our analysis then concentrated on the reasonableness of the request, including but not limited to, whether the request would cause an undue financial or administrative burden.  HUD regulations don’t define with any precision when a request is reasonable or not.  HUD regulations do define requests as reasonable when a request is both  “feasible” and “practical,” feasible meaning possible.  The request to provide a sign interpreter was feasible because it was possible to get an interpreter.  The issue of practicality frequently centers on monetary concerns, but not exclusively.

To determine whether fair housing laws require a proposed accommodation, courts generally balance the burdens the contemplated accommodation imposes on the community against the benefits to the applicant or resident.   As a balancing test suggests, courts typically find an accommodation reasonable when it imposes no undue financial or administrative hardships on the community, and when it does not undermine the basic purpose of the requirement.  When passing the Fair Housing Act, Congress made it clear that landlords may be required to incur reasonable costs to accommodate a disabled applicant or resident.

Neither the law nor courts have established a clear dollar figure that landlords may be required to shoulder in connection with granting reasonable accommodation requests.  Courts determine undue financial and administrative burdens on a case by case basis using various factors including: cost of the requested accommodation; the financial resources of the housing provider; the benefits that the accommodation would provide to the requester; and the availability of alternative accommodations that would effectively meet the requester’s disability related needs.  Because this particular client was a large national company with significant financial resources, the community could not reasonably argue that the reasonable accommodation request created an undue financial burden.

In addition to the legal requirements, litigation risk analysis also dictated that this particular request should be granted.  The average cost to defend a Colorado Civil Rights Division housing discrimination charge runs from $2800 to $5000.  The community was able to obtain an interpreter for a fraction of this amount.  Further, given the somewhat unique and unusual nature of this request, it was possible that the applicant was a Fair Housing tester.  Fair housing testers sole purpose is to try to set you up for a state or federal Fair Housing lawsuit.  You will pay a minimum of $15,000 in attorneys fees to defend a Fair Housing lawsuit in state or federal court.

Finally, as with all reasonable accommodation requests, granting this specific request did not bind this community in the future with respect to any future requests made by this applicant (if and when he became a resident), or any other applicant or resident.  Too frequently, communities deny requests for reasonable accommodations because they are under the false impression that if they grant a request they will have to grant all future requests (if we give it to them, we have to give it to everyone).  This is flawed reasoning.  Requests for reasonable accommodations are highly fact specific and should be evaluated on a case by case basis.  If the applicant became a resident, and requests that the community provide an interpreter in the future for other reasons, those requests should be dealt with at that time.  Future requests may be more likely to involve “services” that the community does not regularly provide, or may be more likely to cause a “financial burden”, and thus may be declined.  For example, communities do not regularly provide the service of sign interpreters for the community annual swimming party.  But again, all requests have to be evaluated on a case-by-case basis at the time they are made.

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