Fair Housing and Property Management

Discrimination based on disability accounted for more fair-housing complaints in 2023 than all other protected classes combined, according to a report by the National Fair Housing Alliance. Here are some FAQs to ensure you comply with fair-housing laws related to disability.

What is a disability under the federal Fair Housing Act?

Disability means a person with physical or mental impairment which substantially limits one or more of a person’s major life activities; a record (history) of the impairment; or being regarded as having the impairment. Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The term does not include current illegal use of or addiction to a controlled substance, but could protect persons who are recovering from substance abuse.

Is it a fair-housing violation for a real estate ad to include “City Park is within walking distance” or “easy walk to neighborhood schools”? Does this language discriminate against people with disabilities?

No. Advertisements with this language would not appear to be violations of fair-housing laws. HUD has indicated that ads containing descriptions of properties (e.g., “fourth-floor walk-up” or “walk-in closets”), services or facilities (“jogging trails”), or neighborhoods (“walk to bus stop”) do not violate the Fair Housing Act.

What is a reasonable accommodation?

A reasonable accommodation is a change in rules, policies, practices, or services that is feasible and practical under the circumstances. Under the federal Fair Housing Act, discrimination can include a property owner’s refusal to make a reasonable accommodation in the rules, practices, or services if necessary to afford the tenant, or any person associated with the tenant, equal opportunity to use and enjoy a dwelling.

A property owner must grant a tenant’s request for a reasonable accommodation unless there is no disability, no disability-related need for the request, the request poses a direct threat to the health or safety of other residents, the request would result in substantial physical damage to the property of others, or the request is unreasonable. Unreasonable requests include requests that are unduly burdensome or would fundamentally alter the landlord’s operations.

For example, a landlord of an apartment building may have a policy to assign parking places based on how long a tenant has lived at the building. Under this policy, new tenants get parking places farthest from the building’s entrance. A new tenant with a disability who asks for a parking place close to the door is making a request for reasonable accommodation.

If that same new tenant instead asked for 24-hour valet parking at the apartment building, that would likely be an unreasonable request.

If a request is denied, the landlord should consider and discuss with the tenant whether there is an alternative accommodation that would address the disability related need without being unduly burdensome. If such an alternative exists, the landlord must grant the alternative accommodation.

What is a reasonable modification?

A reasonable modification means a structural change to existing premises to allow a person with a disability the full enjoyment of the premises. A reasonable modification can be made to the interior, exterior, public areas, or common use areas of a building. Under the federal Fair Housing Act, discrimination because of a disability can include a refusal to permit, at the expense of the person with the disability, a reasonable modification of an existing premises to be occupied by the person if the modification is necessary to afford the person full enjoyment of the premises of a dwelling.

For example, a tenant with mobility challenges who asks to add a ramp to the front door of his rental is making a request for a reasonable modification. However, if that tenant were to ask to create a new entrance through a brick wall to bypass the stairs, he is likely making an unreasonable request.

When reasonable, a property owner may condition permission for a modification on the tenant agreeing to any of the following:

1. When moving out, the tenant must restore the interior of the premises to the prior condition, ordinary wear and tear excepted.
2. Provide a reasonable description of the proposed modification, as well as reasonable assurances that the work will be performed by qualified individuals in accordance with industry standards, and that any required building permits will be obtained.
3. Pay into an interest-bearing escrow account, over a reasonable amount of time, a reasonable amount of money not to exceed the costs of restoration, if necessary to ensure funds are available for restoration. The interest accrues to the benefit of the tenant. An owner cannot increase the security deposit. Note: A resident cannot be charged for restoring common-area or exterior modifications.

What does familial status, one of the protected classes under the federal Fair Housing Act, include?

Familial status relates to any family in which one or more individuals (who have not attained the age of 18 years) live with a parent, a legal custodian, or a designee of the parent or legal custodian, with the written permission of the parent or legal custodian. The protections against discrimination also apply to any person who is pregnant or is in the process of securing legal custody of an individual who has not attained 18 years.

I manage rental properties for a client who doesn’t want people smoking on his property. If we deny a potential tenant’s application because he or she smokes, will this violate any federal fair-housing laws?

No, this will not violate federal fair-housing laws. Federal fair-housing laws make it illegal for the landlord to choose tenants based on their race, color, sex, national origin, religion, handicap, and familial status. However, people who smoke are not a protected class. A landlord can refuse to lease to potential tenants who smoke as long as the landlord consistently enforces such prohibition.

The landlord for the property I manage wants all potential tenants to submit a photo ID with their lease application. Can I require that?

Yes, but you should only use an applicant’s photo ID to verify the applicant’s identity and/or to check on criminal history, rental history, or credit history. You must be uniform and consistent with your photo ID policy, requiring it from all applicants. Never use the photo ID to discriminate against an applicant.

The owner of the rental property I manage wants to limit the number of people who can live in the property. Will such a policy violate fair-housing laws?

Possibly. A property owner who tries to impose limits on families with children may be violating fair-housing laws that protect familial status.

HUD says an occupancy policy of two people per bedroom can be reasonable, but other factors should be considered, including the size and number of bedrooms, the age of the children, and the configuration of the unit.

You should ensure that your occupancy policy is consistent and applies to all occupants and rental applicants. For example, you can’t refuse to rent to one family because they have children or demand that a tenant with a baby on the way move to a larger unit.

A prospective tenant learns from a neighbor that the former tenant was infected with HIV. The prospective tenant contacts the property manager to inquire about whether this is true. Is the property manager required to disclose such information?

No. The federal Fair Housing Act prohibits agents from making unsolicited disclosures concerning whether sellers or property occupants have tested positive for HIV or have been diagnosed with AIDS. Additionally, The Real Estate Licensing Act (TRELA) states that licensees shall have no duty to inquire about, make a disclosure related to, or release information related to whether a previous or current occupant of real property had, may have had, has or may have AIDS, HIV-related illness, or HIV infection.

The National Association of REALTORS® provides guidance on how to respond to an inquiry like this and suggests stating: “It is the policy of our firm not to answer inquiries of this nature one way or the other since the firm feels that this information is not material to the transaction. In addition, any type of response by me or other agents of our firm may be a violation of the federal fair housing laws. If you believe that this information is relevant to your decision to buy/rent the property, you must pursue this investigation on your own.”

A prospective tenant for a property I manage uses a wheelchair. He wants to build a ramp to the front door, widen two bathroom doors, and install grab bars in the bathroom. If he becomes a tenant, what modifications does the owner have to allow?

The landlord must permit reasonable modifications necessary to afford the disabled tenant full enjoyment of the property, such as the modifications described.

To protect both parties, the lease they sign should address who will arrange for the modifications, who will make decisions regarding workmen and materials, and who will pay for the modifications. For example, the lease may provide that the tenant will pay the cost either directly to any contractor or by reimbursement to the landlord, or the lease may provide that the landlord will make the modifications in exchange for a concession, such as an increase in the rent based on the cost of the modifications.

The lease should also cover whether the property will be restored when the tenant moves out and, if it will, who will pay for the cost of such restoration.

Due to a disability, a tenant requests an assistance animal as a reasonable accommodation. Can a property owner require the tenant to pay an additional deposit as a condition for allowing an assistance animal in the dwelling?

No. The property owner cannot require the tenant to pay an additional deposit as a condition for allowing the assistance animal in the dwelling. However, the tenant would still be legally responsible for any damage caused by such an animal.

Is a tenant required to renew any documentation that was provided with a reasonable accommodation request for an assistance animal?

There is no obligation on the tenant to renew the reasonable accommodation documentation. If the tenant’s disability is not readily observable or the documentation does not include information about a chronic disability-related need for the assistance animal, a landlord may contact the healthcare provider that provided the documentation after 12 months to assess whether the healthcare provider still advises the need for the assistance animal. However, if a landlord were to implement a practice of re-assessing reasonable accommodation requests, the landlord should include information about the re-assessment in the landlord’s written criteria or policies to apply to future requests. A landlord should not re-assess any accommodations the landlord has already granted prior to implementing such a policy.