1. Discrimination Against
Families with Children
Families with children are protected from discrimination by the fair housing laws.20 However, the law also protects women who are pregnant and households in the process of adopting a child, getting custody of a child, getting guardianship of a child, or who provide foster care for children.21
If you have children, you know that some landlords simply dislike kids. Others fear the noise or damage that they think kids cause. It is illegal for landlords to refuse to rent to you or in any way discriminate against you because you have children. For example, if you are a mother with three kids, a real estate agent cannot tell you that you would be overcrowded in an apartment but then rent the same place to four students. Similarly, a landlord cannot refuse to show you an apartment because it has lead paint. And a landlord cannot charge you a larger security deposit or insist on more frequent inspections because you have children.
In some circumstances, however, the law does allow Massachusetts landlords to exclude families with children. In general, there are two types of housing where this may be allowed:
- Two-family homes where the owners are occupants;22 and
- Certain buildings intended for and occupied by people over 55 years old.23
Yet, even where an owner-occupant can legally refuse to rent to children, a landlord is not protected by state or federal law if she publishes, advertises, or makes any written or verbal statements that she will not rent to children.24 Most landlords do not put ads in the paper that say "no children, please" because they know that would be illegal. But, some landlords do instruct real estate brokers and managers not to rent to families with kids or to reject them on some made-up grounds. A broker violates the law if she carries out the instructions of an owner-occupant of a two-family building and refuses to show or rent a property to families with children.25
a. Lead Paint
Because lead poisoning is such a serious disease, state law requires owners to delead apartments whenever a child under the age of six lives in the property.26 State law also makes it illegal for a landlord to refuse to rent to you and your children because an apartment has lead paint. Landlords must delead an apartment if you want to rent it and you have a child under the age of six. Because the process of deleading is expensive, landlords attempt to avoid this expense by not renting to children.
A common, but subtle, way of discriminating against families with children is to ask the ages of the children on the rental application. You do not have to tell the ages of your children. Simply list the names of everyone who will be living in the apartment without listing their ages. If a landlord insists on knowing how old your children are, it may be a sign she intends to discriminate against you because you need a deleaded apartment. If this happens, read the section on Steps to Take If You Think You Have Been Discriminated Against.27
Sometimes a landlord will ask: "Do you want a leaded or a deleaded apartment?" If you are asked this, you should say you want to look at anything that is available. If you have a Section 8 certificate or voucher, most housing authorities will not allow you to rent a place that is not certified as "lead-free."28 In these cases, a landlord must delead the apartment.29 She cannot simply refuse to rent to you or refuse to accept your Section 8.30 For more see section on Discrimination Based Upon Receipt of Public Assistance.
b. Apartment Size
If you have kids, you may find that landlords, especially public or subsidized housing landlords, require you to rent apartments with a certain number of bedrooms, perhaps more than you need or can afford. For example, many public housing authorities have a rule requiring a single parent with a young child to apply for a 2-bedroom apartment. Although the rule allows two adults to share a 1-bedroom apartment, the rule would prevent a mother and her baby from being in the same room. This violates the federal and state fair housing laws because a 2-person family with a child is being treated differently than 2-person household without a child.31 However, a landlord is sometimes allowed to reject tenants based on the size of their family in order to comply with state and local housing codes, but can do so only as long as the landlord treats all tenants the same when complying with the these housing codes.32
Although housing discrimination based on a person's race or national origin is illegal, people of color are still routinely subjected to discrimination.33 According to the 2010 U.S. Census figures, people of color in Massachusetts continue to be in much greater concentrations in cities, while the suburbs remain overwhelmingly white.34 Segregation this severe and this widespread does not happen by chance.
Sometimes the discrimination can be blatant, such as when a landlord says: "I don't want to rent to Spanish people." More often it is subtle, where you are shown houses or apartments only in areas where everyone else looks like you. For example, if you are African-American and you are only shown apartments in neighborhoods where there is a large number of other African-Americans. Other times, you may simply not get a call back. Latinos or others with identifiable accents frequently do not have their calls about apartments returned. If the landlord is returning the calls of others who don't have an identifiable accent, this is a form of discrimination.
Finally, the U.S. government has issued warnings about people of Middle-Eastern descent renting apartments in an attempt to plant explosives. While this may be a real threat, it is not an excuse to discriminate. It is illegal to ask about your race and ethnicity for any reason. Therefore, a landlord cannot ask if you are a citizen35 or what country you were born in. You cannot be asked about what your religion is or told that you cannot have guests or visitors of a certain race. If you are being asked questions about your race or ethnicity, you may be the victim of discrimination. For more information about what to do and who to call for help see the section in this chapter called Steps to Take If You Think You Have Been Discriminated Against.
3. Discrimination Based on Receipt of Public or Rental Assistance
It is illegal under state law to discriminate in renting housing because a person receives some form of public assistance, including welfare, medical assistance, or rental assistance. It is also illegal to discriminate against a person because of the requirements of these programs.36 For example, a tenant with a Section 8 voucher can rent an apartment only if her landlord signs a lease. No lease, no subsidy. If a landlord says she does not like leases or she does not like housing authority leases, she may be illegally discriminating.37 It may also be discrimination if the landlord refuses to take payments (called vendor payments) from the Department of Transitional Assistance.
If you run up against a landlord or agent who refuses to rent to you because you have a rental subsidy or receive other public assistance, you should promptly report your complaint to the local housing authority or regional nonprofit agency that gave you the housing subsidy. These agencies have a duty to assist you in filing a complaint.38
People seeking subsidized housing in the Boston metropolitan area can get special help under the terms of a settlement agreement that came about as a result of a lawsuit.39 Under that settlement, you can get a list of available government-subsidized housing in the metropolitan Boston area from the Boston Fair Housing Commission at Boston City Hall, 9th floor; 617-635-4408; open Monday through Friday from 9 a.m. to 5 p.m. You can also request this list by filling out an online intake form, at Metrolist. This list is called the "Metrolist." It does not include all vacancies.
Both federal and state fair housing laws protect people with physical or mental disabilities and give them additional rights to help them rent apartments and maintain their tenancies.40 These state and federal laws prohibit virtually every kind of housing discrimination against people with almost all kinds of disabilities.41 Thus, a blind person, someone with epilepsy, AIDS, or alcoholism, or someone who suffers from depression or is developmentally disabled, has the right to rent and remain in an apartment, just like anyone else. There are three definitions of disability used by the fair housing laws:
- A "physical or mental impairment that substantially limits one or more life activities." This means that if you have a physical or mental condition or disease that prevents you from performing such tasks as walking, seeing, hearing, talking, breathing, holding a job, paying bills, or understanding things, you may be considered disabled. Also, the condition or disease must limit your activities to a great degree and for a long or substantial period of time.
- A record of having a physical or mental impairment that substantially limits one or more life activities; or
- A person who is considered by others to have a physical or mental impairment that substantially limits one or more life activities.42
Frequently, applicants for both public and private housing are denied because of a substance abuse problem in their past or because they have a criminal history.43 In general, it is legal to turn down someone because she has a criminal history.44 Sometimes a landlord will ask an applicant to get copies of her CORI (Criminal Offender Record Information) to see if she has been convicted of any crimes. Asking someone to get copies of her own CORI and turn it over to the gatekeeper, in this case a landlord, is illegal.45 However, landlords do have access to landlord reporting services that have information about arrests or may know that you or someone in your household was arrested or convicted of a drug-related offense.
Individuals who are not current users of illegal drugs or alcohol, but who have a history of substance abuse, are considered disabled under the anti-discrimination laws.46 You may be able to fight the landlord's refusal to rent to you by asking for a reasonable accommodation which includes ignoring your past criminal history. This is very difficult and complicated. You should consult a lawyer if you plan to do this. In general, you must show that you are not currently using illegal drugs or abusing alcohol, that enough time has passed since you were using illegal drugs or alcohol to reassure a reasonable person that you will not relapse,47 that you have rehabilitated yourself, and that the issues raised by your CORI are extremely unlikely to reoccur.
Ultimately, you need to demonstrate to the landlord that you have gone through treatment and rehabilitation and that your past substance abuse, which may have led to your having a CORI, will not pose a threat to the health or safety of other tenants or yourself.
If you want to challenge a private landlord's denial of housing because you abused illegal drugs in the past, you may want to follow the steps taken by public housing tenants when appealing a denial of public housing. When you meet with a private landlord, these steps include:
- Showing what are called “mitigating circumstances.” This means you explain that your circumstances are different and better now than before because you have taken specific steps to change your behavior. For example, you have gone through substance abuse rehabilitation and you are no longer using illegal drugs.
- Asking the landlord to weigh your past bad conduct against the mitigating circumstances.
- Showing that it is "reasonably certain" that you will not engage in any similar bad conduct in the future.
- Showing that despite the seriousness of your behavior, the amount of time which has passed means that the danger to the health, safety, and security of others or the security of property is minimal.
- Convincing the landlord that it is likely your future behavior will be much better48
Also, sometimes CORI information is incorrect because, for example, someone else used your Social Security number or someone has a name that is the same as or similar to yours. If this happens to you, you should contact the Legal Advocacy and Resource Center at 617-603-1700. Advocates there may be able to help you correct your CORI. For more about CORI go to: CORI
a. Reasonable Accommodation
Under the law, people with disabilities have the right to expect that landlords will make reasonable accommodations to their individual disabilities. A reasonable accommodation is a change in a rule, a policy, or a practice of the landlord49 (see below regarding Reasonable Modification). For example, if a landlord has a rule that tenants cannot have dogs, and you need a companion animal or a service animal, the landlord should waive the "no pet" rule for you. A landlord should also make reasonable accommodations to allow a person with a serious heart illness to move to a vacant first-floor apartment, even if the lease on her fourth-floor apartment has months to run. Or, if you receive monthly disability payments after the first of the month, a landlord should be willing to set a new rent due date that is after you receive your disability benefits.
A landlord's duty to reasonably accommodate the needs of people with disabilities applies not only to those with physical disabilities, but also to those with mental disabilities. For example, landlords often take tenants with mental disabilities to court and claim that they have been "difficult tenants." State courts, however, are beginning to understand that tenants should not be evicted if there are reasonable accommodations that will keep them housed and which would not cause "undue hardship" to the landlord. For instance, the reasonable accommodation laws might require a landlord to delay the eviction of a tenant with a mental health disability who was causing minimal property damage and not disturbing other tenants.50 However, an accommodation might not be reasonable if other tenants have been threatened or seriously disturbed by the tenant requesting an accommodation.51
In Housing Court there is a program called the Tenancy Preservation Program which specifically helps households with mental health challenges preserve their tenancy and works with landlords to develop reasonable accommodations.
b. Reasonable Modification
A landlord must allow a tenant to make reasonable modifications to an apartment at the tenant's own expense if it would allow the tenant full enjoyment of the apartment.52 In certain situations, a landlord is required to pay for the modifications needed by the tenant. For instance, landlords who own ten or more units in the same building must pay for reasonable modifications for disabled tenants.53
The most obvious kind of modification is making a physical change in the common areas of a building or in an apartment. This might mean the construction of a ramp, widening of a doorway, installation of grab bars, or installation of a door light for a person who cannot hear the doorbell. The fact that a modification may cost a lot of money does not mean that it will cause an "undue hardship," unless the landlord can show that she can't afford it.54
For a listing of the different state and federal laws guaranteeing fair housing to people with disabilities, see the chart that follows.
|5. Housing Rights for People with Disabilities: Comparison of State and Federal Law
|Multi-family Units Constructed After March 13, 1991
|State Law G.L. c. 151B, §4(7A)
|Broad discrimination protections with respect to all housing other than owner-occupied, 2-family units.
|Reasonable accommodations required in rules, policies, practices, or services.
Landlord must pay for reasonable physical modifications in publicly assisted housing and all buildings with 10 or more units. Tenant must pay for modifications in other rental properties, but landlord cannot unreasonably refuse permission for modifications.
|Units on first floor and, if there is an elevator, other floors must be adaptable in apartment buildings with three or more units. Five percent of new buildings with 20 or more units must also have large kitchens and bathrooms (Access Board can change this percentage).
|Federal Fair Housing Act 42 U.S.C. §3604(f)(3)
|Broad discrimination protections with respect to all housing other than owner-occupied housing with 4 (or fewer) units.
|Reasonable accommodations required in rules, policies, practices, or services.
Tenant must pay for all physical modifications, but landlord cannot refuse permission for tenant to make reasonable modifications.
|First floor and, if there is an elevator, other floors must be adaptable in apartment buildings with four or more units.
Massachusetts law prohibits discrimination in housing because a child or children will occupy the rented premises, but exempts: (1) two-family owner-occupied buildings; (2) buildings with three or fewer units if one unit "is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship"; and (3) a temporary rental (less than one year) of the owner’s principal place of residence. G.L. c. 151B, §§4(11)(1)-(11)(3). These exemptions, however, do not apply to §4(7B)'s ban on discriminatory statements and advertising, nor do they apply to persons whose business includes engaging in residential real estate-related transactions. See 804 C.M.R. §§2.01(4)(b)-(4)(c).
The federal Fair Housing Act, 42 U.S.C. §§3602(k), 3604, and 3606, forbids housing discrimination based on "familial status." "Familial status" was added by the Fair Housing Amendments Act of 1988. The federal law does not apply to owner-occupants of one- to four-family homes (the so-called "Mrs. Murphy" exemption). 42 U.S.C. §3603(b)(2); 24 C.F.R. §100.10(c)(2). The rental or sale of a single-family house by an owner who has not sold a house within the previous 24 months, who does not own more than three single-family houses, who does not use a real estate agent or broker to sell or rent the house, and who does not use a discriminatory advertisement, is also exempt from the Act. 42 U.S.C. §3603(b)(1); 24 C.F.R. §100.10(c)(1). Similar to Massachusetts law, the Fair Housing Act's ban on discriminatory statements and advertising (contained in 42 U.S.C. §3604(c)) is not subject to these exemptions. 42 U.S.C. §3603(b). Moreover, even where a landlord does have an exemption, the landlord's broker may not legally discriminate against children. See 42 U.S.C. §3605.
21 . See 42 U.S.C. §3602(k); 804 C.M.R. §2.02(2). See also, G.L. c. 186, § 16, stating that any lease or rental agreement that terminates the contract if the tenant has or will have a child is void and against public policy.
22 . See G.L. c. 151B §4(11)(2). A landlord is also allowed to exclude children where a dwelling contains three apartments or less and one of the units is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship. G.L. c. 151B, §4(11)(1). The law also allows children to be excluded when a landlord temporarily leases (for up to one year) a single-family residence or unit that the landlord ordinarily occupied as his or her principal residence. G.L. c. 151B §4(11)(2).
23 . See 42 U.S.C. §§3607(b)(1)-(3). The Massachusetts law prohibiting housing discrimination against families with children does not specifically exempt housing for older person, see G.L. c. 151B §4(11); however, the prohibition against housing discrimination based on age does contain such a limitation. See G.L. c. 151B §§4(6)-(7).
The Massachusetts Lead Poisoning Prevention and Control statute is at G.L. c. 111, §190. The law requires all owners of residential buildings to remove or cover lead paint in places where a child under the age of six lives or seeks to live. The law specifically applies to an owner who tries to avoid lead paint liability by discriminating against a family with children, even if that family does not yet reside in the apartment or house. G.L. c. 111, §199A.
G.L. c. 151B, §4(11) specifically obligates the Mass. Commission Against Discrimination or a court which finds discrimination against families with children because of the presence of lead paint to refer such cases to the director of the Childhood Lead Poisoning Prevention Program which is located in Boston.
27 . However, depending on the reason for the question, it may be possible for a landlord or her agent to inquire about the age of children who may be tenants. At least one court has upheld the decision of a HUD Administrative Law Judge who concluded that the Fair Housing Act was not violated when a real estate agent asked a prospective tenant about the number and age of her children in order to secure a quiet neighbor for an existing elderly tenant. Soules v. U.S. Dept. of Housing and Urban Development, 967 F2d 817 (2nd Cir. 1992).
Two federal acts require landlords, including landlords with units paid for by Section 8 vouchers, to inspect apartments in which children live or will live for lead paint. See 42 U.S.C. §§4821-4846 (the Lead-Based Paint Poisoning Prevention Act) and 42 U.S.C. §4851 (Residential Lead-Based Paint Hazard Reduction Act of 1992). See also Voucher Program Guidebook: Housing Choice, U.S. Dept. of Housing and Urban Development, http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/programs/hcv/forms/guidebook. See also the EOHLC Lead Law Policy Notebook, available at the State House Bookstore (617-727-2834).
The EOHLC policy was, in part, a reaction to the holding in the case of Ayala v. Boston Housing Auth., 404 Mass. 689 (1989), which held that the Boston Housing Authority had a duty to inspect a Section 8 unit for lead paint and might be liable for a child's poisoning in a unit that it failed to inspect. The court also held that the tenants were third-party beneficiaries of the contracts between BHA and the landlord and could thus sue for breach of those contracts. If a landlord denies you housing because you are a Section 8 recipient and the rules of the program demand that she delead the unit, then she may be discriminating on the basis of your receipt of a rental subsidy in violation of G.L. c. 151B, §4(10), which prohibits discrimination " … because of any requirement of such … rental assistance or housing subsidy program." If the discrimination was based on the receipt of rental assistance, then the exemption for owner-occupants of two-family homes does not apply. No owner can discriminate on this basis.
29 . See G.L. c. 111, § 197 (requiring landlords to remove, abate, or contain lead paint in a unit rented to a family with children under six years of age.) If there is not yet an executed lease, the landlord may delay the start of the tenancy, no longer than thirty days, to delead the apartment. G.L. c. 111, § 197(h).
31 . 42 U.S.C. §3604(b), as amended by the 1988 Act, explicitly forbids discrimination against any person "in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of … familial status." In Glover v. Crestwood Lake Section 1 Holding Corps., 746 F. Supp. 301, 309-10 (S.D.N.Y. 1990), the court held that a landlord's refusal to rent a one-bedroom unit to a person with a child, or a two-bedroom unit to a person with three children, violates the Fair Housing Act since the landlord had rented these apartments to childless households of the same size.
32 . See 42 U.S.C. §3607(b)(1); G.L. 151B, §4(11). Also, see the State Sanitary Code, 105 C.M.R. §410.400, requiring 150 feet of floor space for the first occupant, and 100 square feet for each additional occupant with 50 square feet per person for shared bedrooms
33 . A recent national study, sponsored by the U.S. Department of Housing and Urban Development (HUD), found that African-American and Hispanic people looking for rental apartments are still discriminated against in cities across the country. White renters were favored over black renters 21.6% of the time. White renters were also favored over Hispanic renters 25.7% of the time. Turner et al., Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000 (Washington, DC, HUD 2002), available at: http://www.huduser.gov/Publications/pdf/Phase1_Report.pdf.
34 . All of the 2010 Census data relating to Massachusetts can be found at http://www.sec.state.ma.us/census/. See also Race, Place, and Segregation: Redrawing the Color Line in Our Nation's Metros, a study by the Civil Rights Project, the John F. Kennedy School of Government at Harvard University, CommUNIRY 2000, and The Leadership Council for Metropolitan Open Communities (2002), available at: http://www.civilrights.org/publications/community2000/metro_open_comm.html.
35 . See Espinoza v. Hillwool Square Mutual Ass'n., 522 F. Supp. 559 (E.D. Va. 1981). While you do not need to be a citizen to apply for public or subsidized housing, some programs are allowed to ask you about your citizenship or immigration status. See generally Legal Tactics: Finding Public and Subsidized Housing, 2d ed., 2006, Booklet 9: Immigrants and Housing.
37 . See Diliddo v. Oxford Street Realty, 450 Mass. 66 (2007). In Diliddo, the Supreme Judicial Court held that a one-month termination provision in an alternative housing vouching program (AHVP) lease was a "requirement" of the AHVP program which the landlord's agent could not reject for financial reasons. In so holding, the Court refused to read into the statute an exception that would allow landlords to reject participants in housing subsidy programs whose requirements might cause the landlord economic harm. See also Clemons v. Niedzwiecki, Western Housing Court, 15-CV-0488 (Fein, J., July 25, 2016) (holding that Chapter 151B’s prohibition against denying housing because the tenant received a housing subsidy or because of the rules of a housing subsidy program includes a prohibition against refusing to rent to tenants because of the particular agency that administers their voucher).
38 . See the regulation for the Section 8 Tenant Based Assistance: Housing Choice Voucher Program, 24 C.F.R. §982.304, Illegal Discrimination: PHA Assistance to Family. This section states: "A family may claim that illegal discrimination because of race, color, religion, sex, national origin, age, familial status or disability prevents the family from finding or leasing a suitable unit with assistance under the program. The PHA must give the family information on how to fill out and file a housing discrimination complaint." See also 24 C.F.R. §982.53, describing the equal opportunity requirements under the Section 8 program. Finally, note that the Equal Opportunity Housing Plan must, in accordance with the requirements of Executive Order 11,063, 27 FR 11527, reprinted as amended in 42 U.S.C.S. §1982, "promote the abandonment of discriminatory practices" and "prevent discrimination."
39 . The federal district court found in NAACP v. Pierce, 624 F. Supp. 1083 (D. Mass. 1985), remanded for remedial order, 817 F.2d 149 (1st Cir. 1987), that HUD had failed in its duty to promote fair housing in administering its federally funded housing and community development programs in the city of Boston. On March 8, 1991, Federal District Judge Walter Skinner approved a consent decree between the NAACP and HUD, which also incorporated settlement agreements between the city of Boston and HUD, as well as between EOCD and HUD.
Ch. 151B, §1(16), (17), and §4(3C), (4A), (6)-(7B). In federal law, the key provisions are in the Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, §13(a), 102 Stat. 1636 (1988), codified at 42 U.S.C. §§3601 et seq. Both the state and federal law add persons with disabilities to the list of those protected against discrimination. Both laws, with the state law being generally stronger, provide that landlords must make "reasonable accommodations" to persons with disabilities so that they can rent and enjoy housing on an equal basis with those who are not disabled.
Another federal law protecting disabled people from housing discrimination, but only in "federally assisted" housing, is Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. §794.
State law, at G.L. c. 151B, §1(17), uses the same definition of "handicap" as the federal Fair Housing Act does. The federal Fair Housing Act and implementing regulations define "handicap" as (1) a "physical or mental impairment which substantially limits one or more of [a] person's major life activities," (2) a record of having such an impairment, or (3) being regarded as having such impairment. 42 U.S.C. §3602(h); 24 C.F.R §100.201. Section 504 has a similar definition. See 29 U.S.C. §§705(9)(B), 705(20)(B).
Note that the federal law does not include as a "handicap" the current illegal use of or an addiction to a controlled substance. 42 U.S.C. §3602 (h)(3), 24 C.F.R. §100.201. (However, recovering drug abusers in a treatment program would not be excluded if they do not currently use illegal drugs. See House Judiciary Comm., Fair Housing Amendments Act of 1988, H.R. Rep. No. 711, 100th Cong., 2d Sess. 25, 28-29, reprinted at 1988 U.S. Code Cong. & Admin. News 2173, 2183-84.) State law, however, makes no exclusion for drug addicts.
Also, the federal law is explicit that discrimination protections are not to extend to any individual whose tenancy would constitute a "direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." 42 U.S.C. §3604(f)(9); 24 C.F.R. §100.202(d). In contrast, the state law, G.L. c. 151B, includes no language exempting such persons from protection against discrimination. The Massachusetts Supreme Judicial Court has held that a public housing authority may evict a tenant who requests a reasonable accommodation but poses a threat to others, but before doing so it must show that an attempt to accommodate the tenant has failed or that there is no reasonable accommodation that will acceptably minimize the risk to other residents. Boston Housing Authority v. Bridgewaters, 452 Mass. 833, 841 (2009).
This section addresses only the disability laws regarding private housing. The laws regarding public and subsidized housing are different and can be more complicated. To get information on how the disability laws apply to public and subsidized housing providers, see forthcoming Legal Tactics: Finding Public and Subsidized Housing (2nd Edition, 2006), available at MCLE and online at: http://www.masslegalhelp.org/.
In addition, sometimes a person will have a CORI (or a poor credit report) because she is survivor of domestic violence. If this is the case, you should explain the circumstances to the landlord. It may be sex discrimination to deny someone housing based on a CORI or poor credit report that is the result of someone’s being a victim of domestic violence. U.S. Dep’t of Hous. & Urb. Dev., Assessing Claims of Housing Discrimination against Victims of Domestic Violence under the Fair Housing Act (FHAct) and the Violence Against Women Act (VAWA) (Feb. 9, 2011). Evictions actions against victims of domestic violence because of acts of domestic violence can also be discrimination on the basis of sex. See Bouley v. Young-Sabourin, 394 F. Supp. 2d 675 (D. Vt. 2005). Massachusetts law also provides certain protections for victims of domestic violence allowing them to break a lease early and request that the locks be changed (for a reasonable fee). G.L. c. 186, §§24, 26. In both cases, the landlord may request proof that the individual is a victim of domestic violence, such as a copy of a court prevention of abuse order or a police report. The law also provides that if a victim of domestic violence exercises his right to terminate his lease early due to domestic violence, a future landlord cannot use that as a reason not to rent to him, nor can a housing subsidy provider use that as a basis to deny rental assistance. G.L. c. 186, §25.
44 . A housing provider violates the federal Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. Where a policy or practice that restricts access to housing on the basis of criminal record has a disparate impact on individuals of a particular race, national origin, or other protected status, such policy or practice is unlawful under the Fair Housing Act. See U.S. Department of Housing and Urban Development Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (April 4, 2016). See also U.S. Department of Housing and Urban Development, Notice PIH 2015-19, Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions (Nov. 2, 2015) (prohibiting landlords who receive federal funding from relying on arrest records only to deny admission to or evict tenants).
47 . The fair housing laws do not give a definition of current use of illegal drugs. However, the Americans with Disabilities Act defines current use of drugs as "illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem." 28 C.F.R. §35.104; 28 C.F.R. §36.104. In addition, the law regarding public and subsidized housing states that "[a] person's illegal use of a controlled substance within the preceding 12 months shall create a presumption that such person is a current illegal user of a controlled substance, but the presumption may be overcome by a convincing showing that the person has permanently ceased all illegal use of controlled substances. This disqualification of current illegal users of controlled substances shall not apply to applicants for housing provided through a treatment program for illegal users of controlled substances." 760 CMR §5.08(1)(k).
The federal Fair Housing Act requires "reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. §3604(f)(3)(B). See 24 C.F.R. §100.204. The concept of "reasonable accommodations" was drawn from §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 (see 53 Fed. Reg. 45003, November 7, 1988), which prohibits discrimination against disabled people in federally assisted housing. This reliance on §504 is significant, because there is a limited body of §504 case law elaborating upon the "reasonable accommodations" concept under §504. See, e.g., Southeastern Community College v. Davis, 442 U.S. 397 (1979), and Alexander v. Choate, 469 U.S. 287 (1985). See House Judiciary Comm., Fair Housing Amendments Act of 1988, H.R. Rep. No. 711, 100th Cong., 2d Sess. 25, 28-29, reprinted at 1988 U.S. Code Cong. & Admin. News 2173, 2189-90. For a very helpful Massachusetts case decided under §504, see City Wide Assocs. v. Penfield, 409 Mass. 140 (1991). In that case, a landlord was attempting to evict an elderly mentally disabled tenant who, because she heard voices in the walls, banged at and threw things at the walls in her apartment. The Supreme Judicial Court held that under §504 the landlord had an obligation to reasonably accommodate her handicap by stopping the eviction action and giving her an opportunity to obtain mental health counseling. The court seemed to agree that the damage caused by the tenant (less than one month's rent) was not significant, especially since the cost was reimbursable by a public agency.
The Massachusetts Appeals Court, interpreting §504 in Whittier Terrace Assocs. v. Hampshire, 26 Mass. App. Ct. 1020 (1989) (rescript), has ruled that a disabled woman who is psychologically dependent upon her cat should be permitted an exception to the landlord's no-pet rule.
A very useful guide on what may or may not qualify as either a reasonable accommodation or a reasonable modification can be found in the joint statements on reasonable accommodations and modifications put out by HUD and the Department of Justice. Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act(May 17, 2004); Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Modifications Under the Fair Housing Act (Mar. 5, 2008).
Although not precisely defining reasonable accommodations, the HUD fair housing regulations give several examples illustrating the range of accommodations required by the law, such as a no-pets policy that should be waived for a seeing-eye dog, provision of a preferred parking space for a mobility-impaired person, and more. See 24 C.F.R. §100.204(b). Note that, irrationally, reasonable accommodations under the HUD §504 regulations do not include supportive services such as counseling, medical, or social services not provided to other tenants, but may include, for example, assistance with trash removal for a physically disabled person. There is no analytic support for this restriction, and it runs counter to precedents in both the housing (Schuett v. Anderson, 386 N.W.2d 249 (Minn. Ct. App. 1986)) and education (Tatro v. Texas, 625 F.2d 557, 564 (5th Cir. 1980)) areas. Advocates should therefore be cautioned not to rely upon HUD's §504 regulations as a correct statement of the law with respect to any aspect of §504 analysis.
State law, at G.L. c. 151B, §4(7A), also includes the failure to make reasonable accommodations as an act of illegal discrimination. This means, as under the federal law, that a person with a disability has a right to expect her landlord to reasonably adjust rules or policies when necessary to allow her to live comfortably in her home. It is also illegal to refuse to rent to a person because she might need reasonable accommodations to the premises or to refuse to allow a tenant to make reasonable modifications to her apartment. Both the federal law (42 U.S.C. §3604(f)(3) and 24 C.F.R. §100.203) and state law require owners to allow disabled tenants to make reasonable modifications to their units at their own expense. This might include widening a doorway, installing a grab bar, putting in a louder doorbell, or lowering the light switches. However, the state law goes further for publicly assisted, multiple-dwelling or other larger housing developments. In those forms of housing, reasonable modifications must be paid for by the owner (in the case of public housing, this is subject to appropriation), but modifications are not considered reasonable if they would impose undue hardship on the owner. Also, reasonable modifications do not include ramping for more than five steps or installing a wheelchair lift. G.L. c. 151B, §4(7A)(1) and (7A)(3). Under §504, the only limit on provision of reasonable accommodations including structural modifications is "undue hardship." Thus, §504, if available, may be the better route for structural modifications in certain situations.
Whether the issue is a physical change to an apartment or the altering of certain rules or policies, the question about reasonable accommodations will most often be "What is reasonable?" State law says that a modification is not required "if it would impose an undue hardship upon the owner. … Factors to be considered shall include, but not be limited to, the nature and cost of the accommodation or modification needed, the extent to which the accommodation or modification would materially alter the marketability of the housing, the overall size of the housing business of the owner … and the ability of the owner … to recover the cost … through a federal tax deduction," G.L. c. 151B, §4(7A)(3).
In Andover Housing Authority v. Shkolnik, 443 Mass. 300 (2005), the Supreme Judicial Court held that a public housing authority did not violate the Fair Housing Act and M.G.L. c. 151B when it evicted a tenant with an alleged mental disability for excessive noise, and that the tenant's requested withdrawal or delay of eviction proceedings was not reasonable. Relying on language appearing in §504 of the Rehabilitation Act (but not in the Fair Housing Act or M.G.L. c. 151B), the Court focused on whether the tenant was a "qualified" handicapped person and concluded he was not. According to the Court, "[i]n the public housing context, a 'qualified' handicapped individual is one who could meet the authority's eligibility requirements for occupancy and who could meet the conditions of a tenancy, with a reasonable accommodation or modification in the authority's rules, policies, practices, or services. Here, the tenants made no showing that, even if eviction proceedings were withdrawn or delayed, they could comply with the terms of their lease by not disturbing their neighbors." 443 Mass. at 310-311 (internal citations omitted).
51 . 42 U.S.C. §3604(f)(9); Andover Housing Authority v. Shkolnik, 443 Mass. 300, 312 (2005) (neighbors' rights need not be "sacrificed 'on the altar' of reasonable accommodation") (quoting Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1046 (6th Cir. 2001)) but see Boston Housing Authority v. Bridgewaters, 452 Mass. 833, 850 (2009)) (“before a public housing authority may terminate the lease of a disabled tenant . . . because he poses ‘a significant risk to the health or safety of others’ that cannot be eliminated by a reasonable accommodation . . . the housing authority ‘must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk’”) (internal citations omitted).
53 . 42 U.S.C. §3604(f)(3); G.L. c. 151B, §4(7A)(1). Under Massachusetts law, an owner must pay for reasonable accommodations "in the case of publicly assisted housing, multiple dwelling housing consisting of ten or more units, or contiguously located housing consisting of ten or more units…." G.L. c. 151B, §4(7A)(1).