If I am applying for housing, how can a reasonable accommodation help me?
If you are applying for public or subsidized housing, you may be entitled to request a reasonable accommodation. Here are some examples of types of reasonable accommodations.
A housing authority office should be physically accessible to people with mobility impairments and other disabilities.
If, because of a disability, you are not able to get to a housing authority office for an application, the agency should mail the application to you.
Likewise, if you are not able to get to an agency for an interview because of your disability, a housing authority should conduct the interview at your home or some other place that is accessible to you.
You are also entitled to have the housing authority assist you in filling out an application if you are unable to do this on your own.29
If you might be considered ineligible or unsuitable for public or multifamily subsidized housing because of behavior related to your disability, but you could meet your basic obligations as a tenant if a reasonable accommodation were made, then you should be eligible.
The concept of reasonable accommodation is broad and flexible, so you can be creative. The following are examples of reasonable accommodations which could enable applicants with disabilities to be considered eligible for housing:
- A person with learning disabilities and a poor rent-paying history should be found eligible if she is willing to get a representative payee to pay her rent directly to the housing authority.30
- A person with a disability with a poor housekeeping history should be found eligible if he has accessed housekeeping services through the Massachusetts Rehabilitation Commission or elsewhere.
- A person with a disability who has a history of fights with former neighbors but is now in treatment, successfully medicated, in control of his anger, and not likely to be involved in future altercations, should be found eligible for housing.31
- A person with a disability who needs a pet (service or companion animal) for reasons relating to her disability should be allowed to have a pet even if she would otherwise not be allowed to have such pet in a particular type of public housing. See If I have a disability and live in public housing, can I have a pet?.
If your name has been removed from a waiting list because you failed to respond to a request for information and the reason you were unable to respond related to your disability, you should ask to be put back on the waiting list. This type of accommodation is required in the Section 8 program and should also be considered reasonable in public and other subsidized housing programs.32
If I have a Section 8 voucher, can a reasonable accommodation help me find housing?
If you have a disability, certain rules can assist you in leasing up an appropriate apartment with a Section 8 voucher.
If a private landlord refuses to rent to you and you believe that you are being discriminated against because of your disability, you should tell the housing authority or regional nonprofit housing agency that gave you your voucher. In response to your report, the housing authority staff must give you information about how to file and fill out a discrimination complaint against this landlord.33 Some housing authorities will freeze the search time for the Section 8 voucher while a discrimination complaint is pending.34 You need to look at a housing authority's Section 8 Administrative Plan or ask the housing authority in order to determine if they will freeze Section 8 search time.
Facing high rents
If you have a disability and have been unable to find an apartment that is affordable with your Section 8 voucher because you have special housing needs related to your disability, you can ask a housing authority or regional nonprofit housing agency to make the amount of your voucher higher. This lets the housing authority allow a landlord to receive a higher rent (payment standard) without making your portion of the rent unaffordable.35 Some examples of when a higher rent might be appropriate as a reasonable accommodation are: if you need a particular type of heating source due to your disability (i.e., electric and not gas heat if you need to be on a first floor; or if you must reside in a particular area in order to be near treatment providers.
Housing authorities must give all people who receive a Section 8 voucher 60 days' search time to find an affordable and decent apartment. If you have a disability and are unable to lease up within this time for reasons related to your disability, the housing authority must extend the voucher search time to what is reasonably required for you to find an apartment.36 This standard is very flexible and allows housing authorities to give significant extensions where necessary. For example, a housing authority can put a hold or freeze on your Section 8 voucher if you are hospitalized or in rehabilitation in a substance abuse program or if you are having a hard time finding an apartment that is wheelchair accessible.
Housing authorities must approve a higher utility allowance than the standard if needed as a reasonable accommodation—for example, if you have a disability and need extra electricity to run medical equipment.37
Number of bedrooms
A person with a disability may receive a voucher for an apartment with more bedrooms than would normally be given to a family without a person with a disability, if additional bedrooms are needed as an accommodation to the person's disability.38 For example, if you or your partner need to sleep in a hospital bed and cannot, therefore, share one bed in one room, you could be entitled to a second bedroom. Likewise, if you have two children who cannot share a room due to emotional or behavioral problems related to disability, you could be entitled to separate bedrooms for your children.
Housing search assistance
Some types of Section 8 housing programs are geared toward people with disabilities. If you have a Section 8 through one of these programs, a housing authority will likely have an obligation to assist you with housing search. For more information about different programs for people with disabilities, see Housing Programs in Massachusetts.
Lists of accessible units
If you need a modified apartment due to your disability, a housing authority must provide you with a list of any available apartments that are accessible.
In addition, a free list of accessible and affordable apartments for people with disabilities is available through a program called Mass Accessible Housing Registry (Mass Access). This Registry has information about accessible and adaptable housing for rent. It includes information about public, subsidized, and non-subsidized housing options. You can search this information on-line to find housing opportunities that suit your needs. Mass Access provides a contact person and phone number so you can call people directly if you are interested in applying to a particular apartment. Get a list of accessible and affordable apartments from the Mass Access website.
Ability to rent from relatives
Under federal law, if you are a Section 8 tenant, you are normally not allowed to rent an apartment owned by your parents, children, grandparents, grandchildren, sisters, or brothers. Where a particular apartment owned by a family member is needed as a reasonable accommodation, the housing authority may not follow (waive) this rule.39
If I need a physical modification to use an apartment, who pays for it?
If you have a disability, landlords may have to make certain reasonable accommodations or adjustments to the physical structure of an apartment so that you can have full use of your home. You can request a physical modification to accommodate your disability before moving into an apartment or during your tenancy.40 You should do this in writing. If you request a physical modification, you must show how the modification will help relieve the effects of your disability.41
In public or subsidized housing and in buildings with 10 or more apartments, the landlord must pay for reasonable physical modifications.42 The exception to this rule is if the owner can show that making the modification would cause undue hardship. Even where an owner does not have to pay for a modification, the tenant must be allowed to make the modification at his or her own expense.43
If you cannot afford to make the changes yourself, there may be some money available to help you make reasonable modifications through MassHousing (617-854-1000), ), the housing department of the city or town in which you live, or through your local independent living center. See Massachusetts Statewide Independent Living Council website for a list of independent living centers.
If, following your written request for the modification, a public housing authority or owner of a building with 10 or more units refuses to make and pay for the accommodation, you can consider filing a discrimination complaint. If the landlord is not required to make a physical modification and refuses your offer to pay for the modifications, this also may be discrimination. For information about how to file a discrimination complaint, see Discrimination.
If I have a disability and live in public housing, can I have a pet?
In general, if you wish to own a pet in public or subsidized housing you should ask the housing authority or other owner for a copy of the pet policy and lease to see what its policies are in regards to pets. However, as described below, you may be able to have a pet, even if the rules would otherwise prevent you from having a pet if you need that pet for assistance related to your disability.
Animals perform many types of functions, including:
- Guiding people who are blind or have low vision,
- Alerting people who are hearing impaired,
- Providing rescue assistance or minimal protection,
- Pulling a wheelchair,
- Fetching items,
- Alerting people to impending seizures, and
- Providing emotional support.44
State public housing
An animal that assists an individual with a disability is not considered a "pet." If you need an animal for a disability-related reason, you do not need permission to keep it in your apartment, as long as it is kept in a safe and sanitary manner.45 Even though you do not need to get permission, it is still a good idea to tell the housing authority, in writing, that you have a service animal.
Federal public housing
Under federal rules, housing authorities cannot use their pet policies to prevent people with disabilities from having an animal that provides them with assistance. A housing authority may, however, require a person with a disability to show that there is a relationship between the person's disability and her need for the animal.46 Even if you are allowed, as a reasonable accommodation, to keep a pet or service animal that you otherwise would not be able to keep, you still must comply with reasonable rules about the safe-keeping of the pet.
If I need a parking place near my apartment because I have a disability, can I get one?
If you have a disability and you need a particular parking space due to your disability, you should request that the landlord make a reasonable accommodation and provide you with the space.47 You may be required to prove that you need the space due to your disability. You can do this by requesting a letter from your doctor stating that you need a parking spot near your apartment as a result of your disability.48
While the landlord may not have to give you the exact space you request, she may be required to give you a space that will address the needs relating to your disability. If there is only one space, your landlord may be required to allow you to park there.
If, after your written request for a reasonable accommodation, your landlord will not give you the appropriate parking space, you can consider filing a discrimination complaint with a local, state, or federal government agency.49 In addition, you may try to get a temporary restraining order from the court. This is an order from a judge that would prevent the landlord from giving the parking space to anyone else until the discrimination issues have been investigated.50 For more information about how to file a discrimination complaint, see Discrimination.
If I live in public or subsidized housing, how can a reasonable accommodation help me prevent an eviction?
Sometimes housing authorities or Section 8 landlords seek to evict tenants because they say the tenant is violating the lease. If you or a member of your household have a disability and your landlord is seeking to evict you because of behavior related to that disability, you may have the right to stop the eviction and put a plan in place that would make sure you or your household member did not continue to violate the lease.
What the law requires is that the landlord make reasonable accommodations to allow a person with a disability to remain living in his or her apartment. If you cannot negotiate a reasonable accommodation with a landlord directly and you need to go before a judge in an eviction case, keep in mind that a judge's decision about when a requested accommodation is reasonable will depend on the facts of the individual case. There is never a guarantee that a particular requested accommodation will be required. However, the following are examples of where accommodations would likely be considered reasonable:
- You suffer from major depression and have a cat that you are emotionally dependent on, but the landlord seeks to evict you for violating a no-pets clause in the lease. A reasonable accommodation might be: Your landlord allows you to keep your cat.51
- Your son is hyperactive and has damaged a few doors in your house as a result of his hyperactivity. Your landlord seeks to evict you due to damage at the premises.52 Your son is now being treated medically for his condition and the treatment has been effective or has a good chance of being effective in lessening his hyperactivity and preventing future damage to the house. A reasonable accommodation might be: The landlord is required to stop the eviction and wait to see if your son is better able to comply with the lease as a result of medication or other treatment. You would most likely need to pay to repair any damage.
- You have fallen behind on your rent due to your depression and your inability to keep up with budgeting. A reasonable accommodation might be: Your landlord may not be able to evict you if you show that your failure to pay rent was related to your disability and that in the future you will be able to pay your rent on time. For example, if you are receiving welfare benefits, you could agree that the Department of Transitional Assistance will send vendor rent payments directly to your landlord. Or you could agree to have a representative payee pay your landlord directly out of your Supplemental Security Income benefits. Another possibility is that you show that you are now in treatment for your depression and that the treatment has been effective or is likely to be effective in lessening your symptoms. You could then ask your landlord to give you another chance to show that you will now be able to pay your rent on time. Most likely, you would need to pay your landlord the back rent owed or have a plan to do so to prevent eviction.
- You have some belongings that your landlord told you to move from the common areas of the building. You are recuperating from back surgery and have not been able to do it. Your landlord serves you with an eviction notice. A reasonable accommodation might be: Your landlord gives you extra time to have the items moved and stops any eviction proceedings once the items are moved. Also, if the work to be performed was limited and would not pose an undue financial or administrative burden on your landlord, the landlord might be required to have maintenance staff move the items for you.53
- Your landlord is seeking to evict you because he claims that you are a poor housekeeper and your apartment is cluttered and a risk to others due either to fire or to cockroach infestation. A reasonable accommodation might be: Your landlord is required to stop eviction proceedings if you or your care providers are able to contract for home housekeeping assistance. Sometimes housekeeping assistance is available through the Massachusetts Rehabilitation Commission or through the Massachusetts Department of Social Services. Assistance may also be available through MassHealth if you qualify for a personal care attendant.54 Councils on Aging often have information regarding housekeeping services in various local areas. For more information, see Massachusetts Statewide Independent Living Council website for a list of independent living centers.
Direct threat exception
A landlord will not need to make a requested accommodation if an individual's tenancy "would constitute a direct threat to the health or safety of other individuals or … would result in substantial physical damage to the property of others or… would result in substantial physical damage to the property of others"55 and this threat could not be eliminated or reduced by a reasonable accommodation. A finding of a direct threat should not be based on a landlord's assumptions about mental illness or on other tenants' subjective fears about mental illness. A finding of "direct threat" should be based only on actual acts of causing harm or threats to cause harm or other similar objective evidence regarding the actual behavior of the tenant.56 A landlord should not determine that a tenant’s behavior poses a direct threat until it has performed an individualized assessment of whether any reasonable accommodation could eliminate or acceptably reduce the risk of future harm to other tenants.
The exception for direct threat should apply only if a tenant would still pose a threat to health or safety after the landlord makes necessary reasonable accommodations.57 For example, a person who might pose a threat without proper treatment or medication who does not pose a threat with proper treatment and medication should be allowed to occupy a unit so long as he or she engages in effective treatment.
29 760 C.M.R. § 5.05(1).
30 See related Giebeler v. M & B Associates, 343 F.3d 1143 (9th Cir. 2003) (court holds that the Fair Housing Amendments Act requires landlord to consider finances of co-signer where necessary to accommodate disabled tenant without sufficient income to rent apartment).
31 Tenant advocates have routinely claimed reasonable accommodation where a denial of housing is based on a criminal record (such as assault and battery) and the criminal activity was related to a disability. At least one federal court has held that a landlord did not need to provide an accommodation in the admissions context where a housing denial was based on a facially neutral policy denying applicants with a criminal record related to violent crime. Evans v. UDR, Inc., No. 7:07-CV-136-FL, 2009 WL 1026724 (E.D.N.C. Mar. 24, 2009). But see Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009) (tenant entitled to reasonable accommodation after receiving an eviction notice based on a physical assault Roe v. Hous. Auth. of Boulder, 909 F. Supp. 814, 822-23 (D. Colo. 1995) (landlord could not lawfully evict a mentally ill tenant for violent behavior where landlord had not established that no accommodation would eliminate or acceptably minimize the risk to other tenants Roe v. Sugar River Mills Assocs., 820 F. Supp. 636, 638-639 (D.N.H. 1993) (same). See Tenant Screening, and Challenging a Denial of Housing.
32 24 C.F.R. § 982.204(c)(2 24 C.F.R. § 960.202(c)(3).
33 24 C.F.R. § 982.304.
34 Under federal law, a housing authority has a duty to "affirmatively further fair housing." 42 U.S.C. § 3608(d). Some housing authorities have specifically included the requirement to freeze voucher search time in their Section 8 Administrative Plan.
35 In the current Section 8 voucher program,housing authorities can set a payment standard between 90%-110% of the fair market rent for its area. If the housing authority uses a payment standard below 110%, it may allow up to 110% for a person with disabilities who needs the adjustment as a reasonable accommodation. 24 C.F.R. § 982.503(b). If you need a payment standard between 110% and 120% of fair market rent, the housing authority should make a request to the HUD local field office. 24 C.F.R. § 982.503(c)(2)(ii). If a payment standard in excess of 120% is necessary, a request may be forwarded to the Assistant Secretary of HUD at its central office in Washington, DC. If such request is denied, a discrimination complaint may be filed with HUD's Office of Fair Housing and Equal Opportunity. See also 24 C.F.R. § 9.
36 24 C.F.R. § 982.303(b)(2).
37 24 C.F.R. § 982.517(e).
38 24 C.F.R. § 982.402(b)(8).
39 24 C.F.R. § 982.306(d).
40 42 U.S.C. § 3604 (f)(3)(B); 29 U.S.C. § 794; 24 C.F.R. § 8.11; 24 C.F.R. § 100.204; G.L. c. 151B, § 4(7A); Southeastern Community College v. Davis, 442 U.S. 397 (1979) (finding that prohibition against discrimination does not require an institution to make substantial modifications in a program Alexander v. Choate, 469 U.S. 287, 301-302 (1985) (reasonable accommodations in the grantee's program or benefit must assure meaningful access City Wide Associates v. Penfield, 409 Mass. 140 (1991) (finding eviction of handicapped tenant discriminatory Whittier Terrace Associates v. Hampshire, 26 Mass. App. Ct. 1020 (1989) (rescript).
41 42 U.S.C. § 3604(f)(3)(A 24 C.F.R. § 100.203; G.L. c. 151B, § 4(7A)(1).
42 Although a landlord must pay for reasonable modifications in buildings of ten or more units, a landlord need not pay for installing a ramp to more than five steps or installing a wheelchair lift. Reasonable modifications include, but are not limited to, making housing accessible to mobility-impaired, hearing-impaired and sight-impaired persons, installing a doorbell that flashes, lowering a cabinet, ramping a front entrance of five or fewer vertical steps, widening a doorway, and installing a grab bar. G.L. c. 151B, § 4(7A)(3).
43 24 C.F.R. § 100.203; HUD Multifamily Occupancy Handbook 4350.3 REV-1, CHG-3 (June 2009), § 2.46; G.L. c. 151B, § 4(7A).
44 See 73 Federal Register 63834 (Oct. 27, 2008Public Housing Occupancy Guidebook, § 16.1; HUD Multifamily Occupancy Handbook 4350.3 REV-1, CHG-3 (June 2009), §2-44.
46 24 C.F.R. § 5.303(a); 73 Federal Register 63834 (Oct. 27, 2008 HUD Multifamily Occupancy Handbook 4350.3 REV-1, CHG-3 (June 2009), § 2-44
47 Rakuz v. Spunt, Trustee, 39 Mass. App. Ct. 171 (1995).
48 Jankowski Lee & Assocs. v. HUD, 91 F.3d 891 (7th Cir. 1996).
49 42 U.S.C. § 3610; G.L. 151B, §§ 3, 5, 6, and 8; 804 C.M.R. §§ 1.00 et seq. Although many cities and towns have fair housing commissions or human rights committees, only a few have enforcement powers. For example, in 1992 the Cambridge Human Rights Commission was declared to be substantially equivalent to HUD under the federal fair housing law and therefore can enforce compliance with the anti-discrimination laws for residents of Cambridge.
50 42 U.S.C. § 3613(c)(1); Heights Community Congress v. Hilltop Realty, Inc., 774 F.2d 135 (6th Cir. 1985), cert. denied, 475 U.S. 1019 (1986) (allowing injunctive relief Runyon v. McCrary, 427 U.S. 160 (1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968); Moore v. Townsend, 525 F.2d 482 (7th Cir. 1975 Smith v. Sol D. Adler Realty Co., 436 F.2d 344 (7th Cir. 1970 G.L. c. 151B, § 9 (statutory basis for injunctive relief G.L. c. 93, § 102(b); G.L. c. 12, §§ 11H and 11I.
51 See Whittier Terrace Associates v. Hampshire, 26 Mass. App. Ct. 1020, 532 N.E.2d 712 (1989). See also Majors v. Housing Authority of DeKalb County Georgia, 652 F.2d. 454 (5th Cir. 1981) (requiring determination of whether handicap requires animal companionship).
52 See City Wide Associates v. Penfield, 409 Mass. 140 (1991) (tenant who threw water on the walls and hit walls with a bat due to auditory hallucinations related to her mental illness entitled to reasonable accommodation).
53 See Schuett Investment Co. v. Anderson, 386 N.W. 2d 249 (Minn. App. 1986) (requiring affirmative steps to accommodate disabled tenants and remedy code violations).
54 For Personal Care Worker eligibility criteria, see 130 C.M.R. § 403.423.
55 42 U.S.C. § 3604(f)(9).
56 Wirtz Realty Corp. v. Freund, 308 Ill. App. 3d 866, 875-876 (1999 Howard v. City of Beavercreek, 108 F. Supp. 2d 866, 875 (D. Ohio 2000).
57 See Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009 Douglas v. Kriegsfeld Corp., 884 A.2d 1109 (D.C. Cir. 2005 Roe v. Sugar River Mills Assocs., 820 F. Supp. 636 (D.N.H. 1993 Roe v. Hous. Auth. of Boulder, 909 F. Supp. 814 (D. Colo. 1995 see also 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. 4-6 (on file with Massachusetts Law Reform Institute).