How to Avoid Fair Housing Trouble When Residents Use Wheelchairs
We’ll answer seven FAQs to help you steer clear of discrimination claims.
When dealing with prospects and residents who use wheelchairs, it’s important to avoid violating the Fair Housing Act (FHA), which bans discrimination against people on the basis of disability, including people who use wheelchairs.
While the IRS is generally responsible for the LIHTC program, in 2000, it entered into a Memorandum of Understanding with the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ) to enforce fair housing laws. HUD is generally charged with enforcing the FHA but may refer cases to the DOJ. In addition to penalties imposed by the DOJ, site owners and managers have a further incentive to be mindful of fair housing laws. Their site’s tax credits may be jeopardized if fair housing laws are violated.
Section 1.42-9 of the Income Tax Regulations says that the failure of a low-income housing tax credit site to comply with the requirements of the FHA results in the denial of credits on a per-unit basis. This means an adverse final decision by the secretary of HUD, a state or local fair housing agency, or a federal court could result in the disallowance of credits or recapture of credits on the affected units. And, consequently, if the reduction in the number of the low-income units in the building(s) brings the project below the minimum set-aside requirement, all the site’s credits could be disallowed.
It’s not always easy to tell if a particular action or policy involving people with disabilities will violate the FHA. Seemingly innocent questions may lead to a finding of discrimination against you. We’ve come up with the answers to seven questions owners and managers commonly ask about what they must do to avoid discrimination when dealing with prospects and residents who use wheelchairs.
Granting Modification Requests
Q A resident at our tax credit site who uses a wheelchair asked us whether he can install grab bars in his bathroom. Must we grant his request?
A Yes. When disabled residents request modifications to their units, you must grant the request if it’s reasonable, otherwise, you’ll violate the FHA. There are no hard-and-fast rules on what’s reasonable, so you must evaluate each modification request on a case-by-case basis.
Fair housing law requires communities to allow an applicant or resident with a disability to make reasonable modifications to the interior of his unit—as well as common areas—to allow him to fully enjoy the housing and related facilities. Under the FHA, the owner must permit reasonable modifications, but the resident is responsible for paying for it.
HUD’s regulations specifically mention “installing grab bars in bathrooms” as an example of a reasonable modification request. Modifications for individuals who have mobility impairments requiring the use of a wheelchair may include: widening doorways, installing grab bars in bathrooms, lowering kitchen cabinets, adding a ramp to a primary entrance, or altering a sidewalk to provide access to a public or common area.
Removing Barriers to Public-Use Areas
Q The entrance to our leasing office is too narrow to allow prospects with wheelchairs to enter. We’ve looked into the possibility of widening the doorway, but our architect tells us it’s just not feasible. Is there anything else we must do?
A Yes. Your leasing office must be accessible to people with mobility impairments. Because it’s open to the public, a leasing office is considered a place of public accommodation, which means that it’s subject to the Americans with Disabilities Act (ADA), in addition to the FHA.
The ADA requires that there are no barriers to the entrance to the leasing office and that there’s adequate accessible parking in the leasing office’s parking lot, including parking that’s accessible for vans. Bathrooms must be accessible for people who are using wheelchairs or other mobility devices.
In April 2010, a Tennessee site settled an ADA complaint, alleging that the company had failed to remove architectural barriers leading into and within its leasing office. Among other things, the settlement required removal of barriers including inaccessible parking in the leasing office’s parking lot, an inaccessible route from the parking lot to the entrance, an inaccessible entry to the office, inaccessible men’s and women’s restrooms in the office, an inaccessible route into the leasing office from a sidewalk leading from the site’s swimming pool, and an inaccessible after-hours drop box [ADA Settlement, Stoneridge Germantown Falls Apartments, April 2010].
With existing facilities, however, the ADA requires that public accommodations remove “architectural barriers” that are structural in nature in existing facilities when it is “readily achievable” to do so. Removal is “readily achievable” when it is “easily accomplishable” and able to be carried out “without much difficulty or expense.” In addition, ADA compliance is to be carried out to the “maximum extent feasible.” For example, when barrier removal isn’t readily achievable, you may use reasonable alternatives. Also, in an ADA lawsuit, the court will consider a landlord’s “good faith” efforts to comply with the ADA.
Since your architect tells you that it’s not feasible to widen the doorway to your leasing office to let wheelchairs through, you must look for reasonable alternatives. For instance, you could arrange to meet with prospects who use wheelchairs at an accessible location outside your office, such as your site’s recreation room or model unit. But if you do this, be sure to give prospects the same degree of privacy and confidentiality that you give prospects at your leasing office.
Asking About Prospects’ Disabilities
Q We know that it’s illegal to discriminate against prospects based on a disability. But if a member of our leasing staff sees that a prospect uses a wheelchair, can we ask the prospect about the seriousness of his disability to help determine if our site meets the prospect’s needs?
A No. You can’t treat a prospect’s use of a wheelchair as an invitation to start asking questions about his apparent disability. The FHA bans you from making visual determinations of a disability. And the FHA bans you from making statements “that indicate any preference, limitation, or discrimination” based on a prospect’s disability when leasing a unit. Regardless of your staff member’s good intentions, her assumption that a prospect has certain needs based on a perceived disability is discriminatory. Instead, your staff members should let prospects bring up the issue of any special accommodations or modifications they may need.
‘Steering’ Prospects to Certain Units
Q We assume that prospects who use wheelchairs prefer to rent units on the ground floor at our site. So if a prospect with a wheelchair asks to see our vacancies, is it okay to show the prospect only our available ground-floor units?
A No. You must let prospects who use wheelchairs decide for themselves whether they’d prefer to rent a unit on the ground floor of your site. If you “steer” prospects—that is, guide, direct, or encourage prospects to live in a particular part of your site or discourage them from living in other parts because of their disability—you’ll violate the FHA. But if a prospect tells you about certain qualifications he has that some of your available units won’t meet, you needn’t show the prospects those units.
Giving Wheelchair Users Preference over Others with Mobility Impairments
Q We have some specially equipped units for mobility-impaired residents at our tax credit site. Is it okay to reserve these units for mobility-impaired prospects who use wheelchairs?
A No. You may think it’s reasonable to deny specially equipped units to mobility-impaired prospects who don’t use wheelchairs because you want to keep these units available for future prospects who use wheelchairs. But such a practice is illegal. That’s because it requires you to make housing decisions based on how disabled you believe one prospect or resident is compared to another. Under the FHA, you must treat all disabled prospects and residents the same.
Requiring Residents Who Use Motorized Wheelchairs to Get Extra Liability Insurance
Q We just had a prospect in a motorized wheelchair visit our leasing office. We’re concerned that if we rent to this prospect, she may damage our site or injure other residents. Can we ask her to get extra liability insurance to protect against this?
A No. You may be concerned that residents who use motorized wheelchairs may injure themselves or others at your site. But since people who use motorized wheelchairs need them because of a disability, you can’t ask a resident who uses a motorized wheelchair to get extra liability insurance. Fair housing law doesn’t permit sites from passing the costs along by requiring individuals with disabilities to pay extra fees or deposits as a condition of receiving a requested accommodation, according to HUD/DOJ guidelines.
For example, a site may not require a resident who has a disability-related need for a motorized scooter to pay an extra deposit or to obtain liability insurance as a condition for allowing him to use the scooter outside his unit. Nevertheless, the site may charge the resident for the cost of repairing any damage to his unit or the common areas caused by the scooter if the site has a practice of assessing residents for any damage they cause to the premises.
Making Exceptions to Site Rules for Motorized Wheelchairs
Q Our site has a rule that bans the use of motorized vehicles in our common areas. A resident who uses a motorized wheelchair complains that our rule unfairly discriminates against her based on the fact that she’s disabled. But we adopted this rule only to prevent damage and injuries. Must we make an exception?
A Yes. It’s not illegal to have a site rule banning motorized vehicles. In fact, having such a rule is a sensible way of preventing property damage and keeping residents safe. But such a rule was really intended to ban residents from bringing recreational items, such as mopeds or electric scooters, into common areas.
You can get into fair housing trouble if you don’t make an exception to this rule for residents’ motorized wheelchairs. The FHA requires you to change site rules, policies, or practices, if asked and as necessary, to offer residents who use wheelchairs an opportunity to use and enjoy their housing. Granting a resident’s request to use a motorized wheelchair in your common area is a reasonable accommodation because it doesn’t involve any undue financial or administrative burdens or require you to make fundamental changes at your site.