I got a question about a specific reasonable accommodation request last week which I thought would make for a good blog entry.  The Fair Housing Act (FHA) was amended in 1988 to add individuals who are disabled as a class protected from housing discrimination.  As such, the law requires management to make accommodations with respect to our rules, policies or services at a community when such an accommodation may be necessary to ensure that the disabled resident/applicant has an equal opportunity to use and enjoy a home.  Sounds simple enough.  

What happens, however, when management receives a reasonable accommodation request which seeks early termination of a lease by a disabled resident as a reasonable accommodation?  Can the phrase "equal opportunity to use and enjoy a home" be read to mean that a resident can break his or her lease as a reasonable accommodation?  How is breaking a valid lease consistent with the "use and enjoy a home" language in the FHA?  That does not logically seem to follow.  

In practice, however, the law holds that a resident may develop a disability, or an existing disability may become so severe during the term of a lease, that he or she cannot meet the obligations of their lease. In cases in which there is no reasonable modification or reasonable accommodation that can remedy the situation, the resident may have no choice but to find alternative housing. In such a case, the resident should request that management permit an early termination of the lease, and if it is reasonable, management may have to grant the request. Either the resident or management may offer an alternative accommodation, such as another, more suitable unit.  As with all determinations of reasonableness, management may only refuse to terminate the lease without penalty if the accommodation would result in an undue burden or would substantially alter the terms of the agreement. In determining reasonableness, the landlord may consider the following:  (a) the likelihood of filling the vacancy given vacancy rates in the area/building; (b) any particular characteristics of the dwelling that make it desirable or undesirable; (c) the amount of time remaining on the lease term; (d) the size of the owner’s business; and (e) the owner’s overall resources.  See e.g. Samuelson v. Mid-Atlantic Realty Co., Inc., 947 F. Supp. 756 (D. Del. 1996).  

To phrase it another way, the request by a disabled resident for early termination of a lease can be considered one of many suitable reasonable accommodations.  Management must evaluate that request and determine if it should be granted or perhaps seek an alternative accommodation that can meet the needs of management and the resident.  To be sure, a determination of what is or isn’t a reasonable alternative is very fact-specific and will be a decision made on a case-by-case basis by courts in the event that the issue is litigated.  These situations are further evidence that management must remain current in responding to requests from residents and we must know the law.

Just A Thought.