When Congress amended the Fair Housing Act in 1989 to add “disability” as a protected category, they wanted to address housing issues that might arise for persons with disabilities. As you recall, a disability is defined as a physical or mental impairment that substantially limits one or more of a person’s major life activities.
If a person meets the definition of disability, they have the right to request a reasonable accommodation that would allow for a change in the rules, policies, and procedures of the housing provider (such as allowing an assistance animal), and they also allowed for reasonable modifications to the building structure. Although the “reasonable accommodation” part of the law has been more controversial, there has also been some confusion on what is required in granting a reasonable modification to a disabled resident.
Under the Fair Housing Amendments Act, a reasonable modification is defined as a structural change to a home or common area that is necessary to enable a person with disabilities to have full use and enjoyment of the premises. As with reasonable accommodations, if a resident requests that structural changes be made to the premises, that request generally should be made in writing, although that is not required. The Fair Housing laws do not allow a resident to make any structural changes without first making the request of the housing provider. In addition, as with reasonable accommodations, the resident making the request must also furnish verification of disability, unless the disability is apparent, such as a person in a wheelchair.
Any modification requested by a resident also has to be “reasonable”. Reasonableness is usually not an issue if the disabled person is responsible to cover the cost, but if the modification creates any health or safety issues, or makes other units inaccessible, then the modification is not reasonable.
One of the confusing issues through the years involves responsibility for the cost of the modifications. The general rule of thumb is that in any private housing (which includes any residence receiving a Section 8 voucher), the resident has to cover all of the cost of the modifications. In addition, it is the resident’s responsibility to arrange for permits and all construction, all of which should be done in workmanlike manner. If the housing provider receives direct federal funding such as a public housing project or project-based Section 8, then the housing provider would normally be required to cover the modification cost.
Finally, if modifications are made to the premises, but it is not feasible for use by future residents of the home, the resident can be required to restore the premises to its original condition. In that regard, the housing provider can request an escrow fund to cover that cost.
As with all potential Fair Housing issues, make sure that your file is well documented.