The Fair Housing Amendments Act (FHAA) was signed into law on September 13, 1988 and became effective on March 12, 1989. The Act amended 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 extends this protection to persons with a disability and families with children.
The FHAA 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 legislation and how to make it work for you.
WHO IS PROTECTED?
Any Person with a Disability Who is NOT Covered by this Act? Yes. Someone who currently is illegally using drugs is not covered. But, someone who is in or has successfully completed a drug-addiction recovery program is covered.
Is There Any Person with a Disability Who is NOT Covered by this Act?
Yes. Someone who currently is illegally using drugs is not covered. But, someone who is in or has successfully completed a drug-addiction recovery program is covered.
TYPES OF HOUSING FACILITIES COVERED
This law pertains to all types of housing, whether privately or publicly funded. Some examples of types of facilities include, but are not limited to, condominiums, cooperatives, mobile homes, trailer parks, time shares, and any unit that is designed or used as a residence. It also includes any land or vacant property, which is sold or leased as residential property.
The FHAA prohibits a wide array of activities that discriminate against persons with disabilities and families with children in the sale or rental of housing. The following specifically outlines illegal actions:
- 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, disability, 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, disability, 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, disability, familial status or national origin. This 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, disability, familial status or national origin.
- Misrepresenting the availability of a dwelling because of the applicant’s race, color, religion, sex, disability, 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, disability, 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 the 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 accommodations” 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 does 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.
The FHAA requires two (2) types of reasonable accommodations to make existing housing more accessible to persons with disabilities. These accommodations consist of (A) Structural Modifications and (B) Policy Changes
(A) Structural Modifications
Housing providers must permit reasonable modifications of existing premises if such modifications are necessary for a person with a disability to be able to live in and use the premises. The cost of the modification is to be paid by the resident with a disability.
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.
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 that 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.
As a result of these rules, the FHAA has, in effect, created three (3) classifications of modifications:
- Modifications that do not have to be restored;
- Modifications that need to be restored to the original condition, but do not require establishment of an escrow account; and
- Modifications that 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 tenant’s use of the apartment.
An example of the second modification 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 – making this an example of the third modification category. A 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 modifications needed so that the tenant with a disability can use and enjoy his/her home.
(B) Policy Changes
The 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 guide dog even though the building has a no pet policy. This same rule would apply to individuals who need a service animal, emotional support animal or a therapy animal.
- Reserving a parking space for a tenant with a mobility impairment that is accessible and close to an accessible route when other tenants must park on a first come, first served basis.
- Waiving a rule that allows only tenants to use laundry facilities in order to accommodate a tenant with a disability 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 that denies people with disabilities access to a facility or service may be a violation of FHAA.
In short, any policy or rule that denies people 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 people with disabilities, if the building was ready for first occupancy on or after March 13, 1991. The design features mentioned here apply to all units in buildings with elevators and to ground floor units in multi-level buildings without elevators.
Multi-story townhouses are exempt from these requirements. The following are FHAA’s 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 placed 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 does not include any exceptions to these requirements, the Department of Housing and Urban Development (HUD) has determined that the provision requiring 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. For example, an accessible route to a building constructed on stilts would be impractical. 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.
WHERE TO GO FOR HELP
In Westchester, you can contact:
Westchester County Human Rights Commission
Fair Housing Department
112 East Post Road, 3rd Floor
White Plains, New York 10601
Office of Fair Housing and Equal Opportunity Room 5116 Department of Housing and Urban Development
451 Seventh Street, S.W.
Washington, D.C. 20410-2000