What is a reasonable accommodation?
If you have a disability, you may be able to get what is called a reasonable accommodation. A reasonable accommodation means that a housing authority or subsidized development makes certain adjustments in rules, policies, services, or even the physical structure of an apartment so that you can have full use of your home.1 It means that sometimes housing authorities and subsidized landlords need to make exceptions and do things differently to enable a person who is disabled to participate more easily in a housing program. You can request an accommodation when you are applying for housing, before moving into housing, or during your tenancy.
You are protected against housing discrimination and entitled to make requests for reasonable accommodations when you are applying for or living in most types of housing, whether it is public housing or privately owned subsidized or non-subsidized private housing.2
Who is entitled to a reasonable accommodation?
People who have disabilities are generally protected against housing discrimination.3 But the definition of who is entitled to a reasonable accommodation and who is protected against discrimination are different. A person with a disability who is entitled to a reasonable accommodation is an individual with a:
- Physical or mental impairment that substantially limits one or more major life activities.4
In order to be entitled to a reasonable accommodation, you must have a current disability as defined above. If you cannot claim a disability under the definition above, you can still be protected against direct disability discrimination (such as being refused housing because of your disability) if you fall into one of the following additional protected categories:
- You have a record or history of such an impairment, or
- You have been perceived to have or are regarded as having such an impairment.5
Keep in mind that these definitions of "disabled" are related to discrimination issues and requests for reasonable accommodations. These definitions are different from the same definition that is used to qualify people for elderly/disabled housing or specialized Section 8 programs for people with disabilities. See Chapter 3: Who is Eligible.
Physical or mental impairment
A physical or mental impairment can be almost any kind of mental or physical condition, illness, or disorder, including, for example, depression, cancer, cerebral palsy, learning disorders, alcoholism, mental retardation, attention deficit disorder, or deafness.6
Substantial limitation in major life activities
There is no set definition that states when an impairment substantially limits a major life activity. Major life activities include, but are not limited to, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.7 There may be other activities that should also be considered major life activities.
Whether an impairment causes a substantial limitation to a major life activity needs to be decided on a case-by-case basis.8 If you are receiving disability benefits, such as SSI, SSDI or EAEDC, a housing authority or subsidized landlord will probably consider you to be disabled.
If you do not receive disability benefits, the best thing to do to establish your disability is to get your doctor or medical care provider to write a letter detailing the nature of your impairment and stating that your impairment substantially limits you in a major life function. A doctor should say which major life function is impaired and how it substantially limits your functioning.
Having a record or history of an impairment
Having a record or history of an impairment means that, even if you do not currently meet the definition of disabled, you may be protected against discrimination if in the past you had a disability.9 For example, you may be functioning well now, but in the past had a history of psychiatric hospitalizations. If a landlord knows this or suspects this and discriminates on this basis, she would be acting unlawfully.
Perceived as having an impairment
If a housing authority or subsidized landlord treats you as having an impairment, regardless of whether you do or do not, this would be discrimination. For example, if you are gay and a landlord refuses to rent to you because she believes that you or your friends are likely to have AIDS, the landlord has acted unlawfully in violation of state and federal discrimination law.10 This is true whether or not you or any of your friends have AIDS.
Is drug addiction or alcoholism considered a disability?
Illegal drug use
Current users of illegal drugs are not considered to be disabled on the basis of their illegal drug use or addiction.11 If, however, you have had a history of drug abuse and are no longer using drugs, you are protected under state and federal discrimination laws and may be able to ask for a reasonable accommodation if you:
- Have successfully completed a rehabilitation program
- Have otherwise been rehabilitated successfully, or
- Are participating in a treatment or self-help program.12
If you are applying for state public housing, you will be presumed to be a current user if you have used illegal drugs in the past 12 months. You can overcome this presumption by a "convincing showing" that you have permanently ceased all illegal use of controlled substances.13 If you are applying to any other state or federal housing programs, there is no set time frame for determining when someone is or is not a current user. The courts have generally used a "reasonableness" standard for determining current use.14 As a practical matter, many housing authorities have set time frames to determine eligibility for housing. For example, a housing authority may have a policy (usually unwritten) that you will be denied if you were actively using illegal drugs within the last two years. It may be unlawful, however, for the housing authority to apply this uniform policy where you can show that you have been successfully rehabilitated.15
Alcohol use is treated somewhat differently from illegal drug use, in large part because it is not unlawful to consume alcohol. Under both state and federal anti-discrimination laws, you can be considered disabled and protected if you are substantially limited in one or more major life activity as a result of the alcoholism.16 However, under federal law you most likely will not be protected against discrimination if your current use of alcohol would prevent you from meeting your tenancy obligations or would constitute a direct threat to the health or safety of other tenants.17
In addition, under most federal housing programs you will be denied housing if the housing authority has "reasonable cause to believe that a household member's abuse or pattern of abuse of alcohol may threaten the health, safety or right to peaceful enjoyment of the premises by other residents."18 It is important to note that a housing authority may not deny you housing solely for being an alcoholic unless there is evidence that the alcoholism is likely to interfere with other residents.
When is an accommodation reasonable?
If you are disabled and need a change to a rule or to a physical space, you can ask for a reasonable accommodation. The accommodation is considered reasonable when it does not impose an undue administrative or financial burden on a housing authority or subsidized landlord or require a housing authority to fundamentally change a housing program.19
There is no limit to the type of accommodation you can request, as long as it meets this definition of "reasonable." For example, accommodations or modifications that are considered reasonable and are required under the law include:
- Lowering the cabinets for someone in a wheelchair
- Putting grab bars in bathrooms
- Putting ramps in where there are five or fewer steps, and
- Putting in fire alarms that flash for people with hearing impairments.20
In other cases, there are no specific rules, and it is up to you to advocate that a particular request is reasonable.21 Examples of accommodations that may be considered reasonable will be discussed in How a Reasonable Accommodation Request Can Help.
Do I need to put my request for reasonable accommodation in writing?
If you need a reasonable accommodation, you should inform your landlord or prospective landlord that you are disabled and need a particular kind of adaptation or accommodation either to get into housing or to remain in housing. At some point you will also need to show that you will be able to meet your tenancy obligations if such an accommodation is provided.22 Although a tenant does not need to put this request for a reasonable accommodation in writing, it is better to do so.23 First, your request will probably be treated more seriously. Second, in order to bring a fair housing claim later for a landlord's refusal to make an accommodation, you will have to prove both that your landlord knew or should have known that you were disabled and that you requested an accommodation at some point. Putting a request into writing makes this easier to prove.
Some housing authorities have reasonable accommodation request forms.24 See a sample letter to request an accommodation. For an example, see Boston Housing Authority's Request Form. While, under the law, a housing authority may not require you to use a particular form, it will generally speed up the process if you do use the forms requested by the particular housing authority.25
When must I make the request for an accommodation?
It is advisable to make your request as soon as possible. Generally, in order to obtain a reasonable accommodation an owner must be aware that a tenant is disabled26 and that the tenant is in need of an accommodation.27 In the eviction context, a tenant may request an accommodation before trial, at trial or up until he or she is actually evicted.28
1 24 C.F.R. § 100.204; 24 C.F.R. § 9.103, as described in the preamble to the Part 9 rules at 59 Federal Register 31036-01, 31042 (June 16, 1994 G.L. c. 151B, § 4(7A)(2). This applies to applicants and existing tenants.
2 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, applies to housing programs receiving federal funds. See also HUD PIH Notice 2006-13, available online. Even if an apartment or program is not federally funded (i.e., private, state), the federal Fair Housing Act will apply except for owner-occupied buildings with four or fewer units or single-family homes, if the owner owns no more than three such units. 42 U.S.C. § 3603(b 24 C.F.R. § 100.10(c)(2).
State law applies to most types of housing except two-family owner-occupied dwellings. G.L. c. 151B, §§ 1, and 4(6) and 4(7).
3 See generally: Fair Housing Act, 42 U.S.C. § 3601 et seq.; 24 C.F.R. § 100; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ; 24 C.F.R. §§ 8 and 9; Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; 28 C.F.R. § 35; Massachusetts Anti-Discrimination law: G.L. c. 151B; 804 C.M.R. § 2.03; Massachusetts Constitution: Amendment Article 114; Massachusetts Equal Rights Act, G.L. c. 93, § 103.
4 See 42 U.S.C. § 3602; 24 C.F.R. § 100.201; 42 U.S.C. § 12102(2 29 U.S.C. § 705(9)(B) and (20)(BG.L. c. 151B, § 1(17). The Massachusetts Anti-Discrimination statute, the federal Fair Housing Amendments Act, and Section 504 of the Rehabilitation Act and all implementing regulations use the term "handicapped" instead of "disability." The Americans with Disabilities Act uses the term "disability." The two terms have the same meaning under the law.
5 42 U.S.C. § 12102(2).
6 There are some exceptions. Federal law states that a person who is a transvestite shall not be considered disabled solely due to this condition. 24 C.F.R. § 100.201. Massachusetts Commission Against Discrimination guidelines for employment discrimination on the basis of handicap, while not binding in housing cases, may prove illustrative. For example, the guidelines state that the following are NOT qualifying impairments: "environmental, cultural, and economic disadvantages; homosexuality, bisexuality and other sexual orientation; normal pregnancy; personality traits that are not caused by mental or psychological disorders; normal deviations in height, weight or strength; the current, illegal use of a controlled substance; or the nondependent use of alcohol."
7 24 C.F.R. § 8.3(b), under definition of "individual with handicaps"; 29 C.F.R. § 1630.2(j)(1) (which states that an impairment or group of impairments is substantially limiting if it prevents or significantly restricts the duration, manner, or conditions under which an individual can perform one or more major life activities G.L. c. 151B, § 1(20 804 C.M.R. § 2.03(2).
8 An impairment will still be considered disabling even if it is episodic or in remission if it would substantially limit a major life activity when active. 42 U.S.C. §12102(4)(D) as amended by the ADA Amendments Act of 2008. In addition, a determination whether an impairment substantially limits a major life activity shall be made without regard to ameliorative measures. Ameliorative measures include, but are not limited to, aids such as medication, medical supplies, prosthetics, hearing aids, mobility devices, etc. See fuller list with exclusions at 42 U.S.C §12102(E see also Department of Housing and Community Development, Public Notice: 2009-11, p. 2 fn. 1; Dahill v. Police Dept. of Boston, 434 Mass. 233 (2001), for analysis of applicability to state anti-discrimination law.
942 U.S.C. § 12102(2 24 C.F.R. § 100.201(c).
10 42 U.S.C. § 3602(h 42 U.S.C. § 12102(2 24 C.F.R. § 8.3 (definition of "individual with handicaps" G.L. c. 151B, § 1(17).
11 29 U.S.C. § 705(20)(C 42 U.S.C. § 3602(h 24 C.F.R. §§ 9.103 and 100.201; G.L. c. 151B, § 17(c).
12 29 U.S.C. § 705(20)(C 24 C.F.R. § 9.103.
13 760 C.M.R. § 5.08(1)(k).
14 The Americans with Disabilities Act (ADA) Conference Report states that "the provision is intended to apply to a person whose illegal use of drugs occurred recently enough to justify a reasonable belief that the person's use is current." See H.R. Conf. Rep. No. 101-596. See also the preamble to Title II regulations at 28 C.F.R. § 35.131; 24 C.F.R. § 9.103 (definition of current illegal use of drugs under Section 504 of the Rehabilitation Act of 1973).
15 Decisions regarding “current use” should be based on facts related to the individual applicant. See United States v. Southern Mgmt. Corp., 955 F.2d 914, 923 (4th Cir. 1992) (a person who was drug free for one year and involved in ongoing professional rehabilitation was not excluded from the protection of federal law Fowler v. Borough of Westville, 97 F. Supp. 2d 602, 608-609 (D.N.J. 2000) (plaintiff was not excluded from disability protections as a current user of illegal drugs where only use was four months after incident of alleged discrimination see also Peabody Properties, Inc. v. Sherman, 418 Mass. 603, 605 (1994) (tenant who was convicted for possession of a controlled substance with the intent to distribute was not a protected disabled tenant under federal law despite being drug free and enrolled in a drug rehabilitation program at the time of trial).
16 24 C.F.R. § 100.201(a)(2 G.L. c. 151B, § 1 (17).
17 24 C.F.R. § 8.3 (definition of "individual with handicaps"). Note that HUD interprets the Fair Housing Amendments Act in a manner consistent with Section 504 of the Rehabilitation Act of 1973. See 54 Federal Register 3231, 3245 (Jan. 23, 1989).
18 Federal public housing: 24 C.F.R. § 960.204(b Section 8: 24 C.F.R. §§ 982.551(m) and 982.553(a)(3).
19 24 C.F.R. § 8.33.
20 804 C.M.R. § 2.03(4).
21 Where state regulations set forth a specific requirement, advocates can use that to argue that a similar requirement in a parallel federal program should be deemed reasonable.
22 Andover Housing Authority v. Shkolnik, 443 Mass. 300 (2005) (tenant must establish that he is "otherwise qualified" when requesting an accommodation in the eviction context). But see Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (Mass. 2009).
23 See Joint Statement of the Department of Housing and Urban Development and the Department of Justice entitled "Reasonable Accommodations Under the Fair Housing Act," May 17, 2004, p. 10 (oral request for accommodation is sufficient to trigger duty of landlord). On file with Massachusetts Law Reform Institute. In addition, see Department of Housing and Community Development Public Housing Notice: 2009-11, p. 6 (in state public housing, a request for a reasonable accommodation/modification does not have to be made in writing), available online.
23See Joint Statement of the Department of Housing and Urban Development and the Department of Justice entitled “Reasonable Accommodations Under the Fair Housing Act,” May 17, 2004, pp. 10-11 (housing authority may not require that a request for a reasonable accommodation be made on a particular form) (on file with Massachusetts Law Reform Institute).
24For an example, see DHCD’s sample form online. Boston Housing Authority’s request form is also available online.
25 See Joint Statement of the Department of Housing and Urban Development and the Department of Justice entitled "Reasonable Accommodations Under the Fair Housing Act," May 17, 2004, pp. 10-11 (housing authority may not require that a request for a reasonable accommodation be made on a particular form). On file with Massachusetts Law Reform Institute.
26 In Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009), the Court found that the landlord must have known the tenant was disabled where, among other things, he was a non-elder living in elderly/disabled housing, he received Social Security Disability Income (SSDI) benefits and the landlord regularly recertified his income..
27 See Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009) (at least in federally financed public housing, a disabled tenant must, if his landlord is not already aware, inform the landlord that he has a disability and must request some accommodation see also Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 313 (2005) (tenant has requested an accommodation where the tenant informs the landlord he is a handicapped tenant and that he is being denied an equal opportunity to use and enjoy a dwelling).
28 See Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009) (tenant meets his obligation to request an accommodation by making such request to the judge at eviction trial Radecki v. Joura, 114 F.3d 115, 116 (8th Cir. 1997) (landlord has continuing obligation to provide accommodation up to the date of the eviction Cobble Hill v. McLaughlin, 1999 Mass. App. Div. 166; Douglas v. Kriegsfeld Corporation, 884 A.2d 1109 (D.C. Cir. 2005) (court finds that a reasonable accommodation defense is available at any time before a judgment of possession is entered but see Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 313 (2005) (court states in what can be characterized as dicta that the purpose of the administrative process prior to eviction would be thwarted if the tenant is allowed to raise different defenses at different stages of eviction proceedings).