Landlords may choose freely among prospective tenants without fear of legal repercussions, as long as their decisions are based on valid and objective business criteria, such as the applicant’s ability to pay the rent and properly maintain the property. It is illegal, however, for landlords to discriminate against tenants on as the basis of disability (or race, color, religion, national origin, familial status, or sex). These groups are called “protected categories.”
The federal Fair Housing Act and Fair Housing Amendments Act (42 U.S. Code Sections 3601–3619 and 3631), which are enforced by the U.S. Department of Housing and Urban Development (HUD), address many types of housing discrimination, including that based on disability.
Legal Definition of Disability
The Fair Housing Amendments Act prohibits discrimination against people who:
- have a physical or mental disability that substantially limits one or more major life activities—including, but not limited to, hearing, mobility and visual impairments, mental illness, HIV-positive status, having AIDS or AIDS-Related Complex, mental retardation, chronic alcoholism (but only if it is being addressed through a recovery program), or past drug addiction (but not if that person is currently using or dealing drugs)
- have a history or record of such a disability, or
- are regarded by others as though they have such a disability.
What constitutes a disability is not always clear; for example, tenants who use a wheelchair clearly have a disability, but so too do those suffering from "multiple chemical sensitivities" or “building material sensitivity,” such as to vapors from paint or rugs.
The law also protects those who are “associated with” someone who has a disability, such as a family member, cotenant, or caregiver who lives with the tenant or makes house visits.
You may have been subjected to housing discrimination if the landlord takes any of the following actions based on your disability:
- refuses to rent to you (assuming you meet all the criteria applied to other tenants, such as a good credit history and references from previous landlords)
- falsely tells you that a rental unit is no longer available, or
- asks to see your medical records (unless you ask for accommodations or modifications; see below).
Tenant Right to Accommodations
As a tenant with a disability, you can expect the landlord to adjust rental rules, procedures, or services in order to give you an equal opportunity to use and enjoy your dwelling unit or a common space. Accommodations include such things as:
- providing a close-in, spacious parking space if you are a wheelchair-bound tenant (assuming, of course, that the landlord provides parking in the first place)
- allowing you to keep a guide dog, hearing dog, or service dog in a rental unit that otherwise disallows pets, or
- allowing a special rent payment plan, if your finances are managed by someone else or by a government agency.
Tenant Right to Make Physical Modifications
A person with a disability has the right to modify a living space to the extent necessary to make it safe and comfortable, as long as the modifications will not make the unit unacceptable to the next tenant, or the tenant agrees to undo the modification when the tenant leaves. Examples of modifications you may undertake include:
- lowering countertops (if you use a wheelchair)
- installing special faucets or door handles (if you have limited hand use)
- modifying kitchen appliances (if you have a sight impairment), and
- installing a ramp (if you use a wheelchair) to allow you to negotiate two steps up to a raised lobby or corridor.
Your landlord is not obligated to allow you to modify your unit at will, without prior approval. Typically, you must provide a reasonable description of the proposed modifications, proof that they will be done in a workmanlike manner, and evidence that you are obtaining any necessary building permits.
Unless the property is located in Massachusetts or it is federally financed, tenants must pay for their own modifications. If you propose to modify the unit in such a way that will require restoration when you leave (such as repositioning lowered kitchen counters), your landlord may require that you pay into an interest-bearing escrow account the amount estimated for the restoration. (The interest belongs you.)
In many cases (for example, if you are in a wheelchair), your disability and housing needs will be obvious. In other cases, a landlord is entitled to ask for verification that you have a disability and that a specific modification, such as lowered countertops, is needed to enable you to live safely and comfortably. A physician’s statement that you need what you are asking for and that it will meet your needs should be sufficient (without your physician having to provide your medical records).
Rental Property Exempt from Fair Housing Laws
Under limited circumstances, a landlord might be exempt from federal housing law. Here are the types of property exempt from the federal fair housing laws:
- owner-occupied buildings with four or fewer units
- single-family housing rented without the use of discriminatory advertising or without a real estate broker
- certain types of housing operated by religious organizations and private clubs that limit occupancy to their own members, and
- with respect to age discrimination only, housing geared toward seniors.
Keep in mind, however, that a rental property may not be exempt from state anti-discrimination laws. California housing discrimination law, for example, does not exempt owner-occupied buildings with four or fewer units, so landlords who live in a building with four or fewer units may not discriminate against those with disabilities.
Legal Help for Housing Discrimination Against Disabled Tenants
If you have a disability and believe that a landlord has violated your rights to fair housing in one of the ways described above, start by checking the Department of Housing and Urban Development (HUD) website at www.hud.gov, where you'll find a chart of HUD regional offices and their phone numbers. Explain your situation and ask about complaint procedures. You’ll also want to check your state and local housing discrimination laws, which may provide additional protections. The HUD website includes a list of state and local fair housing agencies.
In many cases, you will need the help of an experienced attorney—for example, if you file a complaint and need to attend a HUD administrative hearing, which is like a trial without a jury, to determine whether you have been discriminated against on the basis of your disability. If HUD takes your case, it will provide you with an attorney. But if you have decided to go directly to court, you’ll definitely need an attorney.
Filing a complaint or a lawsuit, and obtaining a favorable settlement or judgment, may result in the landlord having to do one or more of the following:
- rent you a particular unit
- pay you “actual” or “compensatory” damages (such as additional rent you had to pay elsewhere)
- pay you punitive damages as punishment for especially outrageous, intentional discrimination, or
- pay your attorney fees (if you hired an attorney to file a lawsuit).
For more information on tenant rights, including housing discrimination on the basis of disability, see Every Tenant’s Legal Guide, by Janet Portman and Marcia Stewart.