Relevant Disability-Related Laws in Housing
The Fair Housing Act (FHA) prohibits housing providers from treating individuals with disabilities less favorably because of their disabilities. The FHA obligates housing providers to grant reasonable accommodations that will allow individuals with disabilities to equally enjoy the dwelling. Additionally, the FHA obligates housing providers to permit residents with disabilities to make reasonable modifications at their own expense. Requests for accommodations and modifications are not considered reasonable if they impose an undue financial and administrative burden or would fundamentally alter the nature of the provider's operations. The reasonable accommodation requirements of this law do not apply to owners in owner-occupied buildings with four or fewer dwelling units, among other exemptions.
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against people with disabilities in programs that receive federal financial assistance. Housing providers that receive federal financial assistance (subsidized housing) are required to provide reasonable accommodations to applicants/residents with disabilities. When reasonable, they are also obligated to finance modifications.
Massachusetts General Law c. 151B §§4 (6) and (7) offers comparable anti-discrimination protections and imposes similar obligations to accommodate as the Federal Fair Housing Act. Most public and private housing is covered under this law, with the exception of owner-occupied two-family dwellings. Additionally, public housing entities must finance reasonable modifications based on the needs of a person with a disability. Private housing with 10 or more units must also provide reasonable modifications at the expense of the owner.
Note that federal and state fair housing laws apply to slightly different types of housing. While both levels will apply to most housing, there are cases in which only one will apply, e.g. owner-occupied three- and four-unit housing is only covered by the Massachusetts law, not the FHA.
Who is considered a person with a disability under fair housing laws?
Fair housing laws use a similar definition of disability to the Americans with Disabilities Act (ADA). A person with a disability is defined as an individual:
- With a physical or mental impairment that substantially limits one or more major life activities,
- Who is regarded as having such an impairment, or
- With a record of such an impairment.
What is disability discrimination in housing?
There is a distinct difference between discriminatory behavior and other problems a person might experience in housing (e.g. interpersonal conflicts, lease and sanitary code violations).
According to federal and state fair housing laws, disability discrimination occurs when a housing provider treats an individual differently because they have a disability or are associated with someone with a disability or denies a reasonable accommodation/modification. Examples include:
- Refusal to rent, sell, or otherwise make a unit unavailable based on disability.
- Offering different terms, conditions, or privileges of a sale, rental, occupancy, or services for those with disabilities.
- Falsely representing that a unit is not available, limiting access to brokerage services, or selectively enforcing land use, zoning, or other ordinances due to a disability.
- Making unnecessary inquiries about a person’s disability beyond that needed to explain the connection between a disability-related limitation and a request for reasonable accommodation/modification.
- Denying a request for accommodation or modification that is reasonable and necessary for a resident with a disability (or a resident’s friend, family member, or other associate with a disability) to equally enjoy a dwelling.
What are reasonable accommodations and reasonable modifications?
A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that will allow a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common spaces.
The main considerations around whether an accommodation is considered reasonable are:
- The disability-related need for the accommodation,
- The financial or administrative burden of providing it, and
- Whether granting it would require a fundamental alteration of the provider’s operations.
Examples of reasonable accommodations:
- Assigning a closer parking space to a resident with a mobility disability.
- Making an exception to a no animals policy to allow an individual to have a service dog or emotional support animal.
- Assisting an applicant with a cognitive disability with completing paperwork.
- Relocating a trash storage area to a room that is on a ground floor so that it is accessible without using stairs.
A reasonable modification is a structural change that is made to an existing premises that will allow a person with a disability equal access and full enjoyment of the dwelling.
Examples of reasonable modifications:
- Installing a visual fire alarm for a tenant who is deaf.
- Ramping a step at an entrance for a wheelchair user.
- Adjusting the door pressure to make opening the door easier for someone with limited arm strength.
- Installing grab bars in a shower and by a toilet for a tenant who has a high fall risk.
Explore some potential funding sources for home modifications.
The Massachusetts Architectural Access Board (MAAB), ADA Standards for Accessible Design, and the Fair Housing Act address structural accessibility requirements for residential and housing related buildings. Obligations to follow code are based on many factors, can vary from code to code, or overlap. If there is a question about whether the features of a dwelling meet those standards, contact MOD. Even if a dwelling complies with the applicable codes, this does not mean that something cannot be further modified to meet the resident’s specific disability-related needs.
The Departments of Justice and of Housing and Urban Development provide valuable detail and examples regarding in their frequently asked questions on reasonable accommodations and reasonable modifications under the Fair Housing Act,
The reasonable accommodation/reasonable modification process
The fair housing laws obligate housing providers to engage in an interactive process with a person requesting reasonable accommodation/modification. This process is a negotiation that ensures timely communication between the parties and encourages a resolution.
- Request: When a person with a disability requests a reasonable accommodation/modification they are asking for a change of a policy, practice, or procedure, or they are requesting a structural change to the built environment. The person with a disability is responsible for making the request and establishing the connection between their disability-related limitations and what it is that they are requesting. The terms reasonable accommodation/modification do not need to be used and the request can be made verbally or in writing.
- Supporting documentation: If the need is not obvious, the housing provider is permitted to ask for confirmation from a medical professional that the individual is a person with a disability and that there is a direct link between their limitations and their request. A medical professional can be any provider (doctor, licensed social worker, therapist, etc.) who treats the individual for the condition relevant to the request.
- Evaluation: Upon receipt of the request, the housing provider will evaluate whether or not they can grant the accommodation/modification. The decision should be made on a case-by-case basis after evaluating the specifics of the situation. It is important to figure out whether a housing provider is obligated to simply grant the request, or if there is an obligation to both grant and fund the implementation of the request. A housing provider can deny an accommodation/modification when it would result in an undue financial and administrative burden or a fundamental alteration of the provider’s operations. When determining if a requested accommodation/modification poses an undue financial or administrative burden a housing provider may consider:
- Their available financial resources
- The cost of granting the request
- Whether it is structurally possible and safe to implement
- The level of benefit to the person who requested the accommodation/modification
- Availability of less expensive alternative solutions that would effectively meet the disability-related needs
- Interactive process: If a housing provider finds a request to be unreasonable, they should discuss potential alternative options that would effectively address the person’s disability-related needs. If an alternative accommodation is effective and reasonable the provider should grant it.
- Decision: the housing provider should give a clear decision:
- Approval of the request,
- Approval of an alternative, or
- Denial of the request, in which case an explanation should be provided.
- If a request is approved, it should be made clear who is responsible for funding and carrying out any work required, such as modifications or notices.
Tips on requesting a reasonable accommodation/reasonable modification
1. Prepare logic and wording:
- Identify your need and the corresponding accommodation/modification as specifically as you can.
- Confirm whether you actually need to make a request: that there is a policy, practice, procedure, or regulation that you need to ask for an exception to. For example: Before requesting a reasonable accommodation for an assistance animal, find out if there is a no pets policy outlined in your lease or condo documents.
- Prepare a clear explanation of the link between your disability-related limitations and the reasonable accommodation/modification you are requesting.
- Be prepared to explain why the current situation is not working.
- For modifications, consider the likely cost of your request and whether you are offering to finance it or you are asking your housing provider to. Housing providers have obligations to finance reasonable modifications if they receive public funding or the building has 10+ units.
- Think ahead, and consider adjusting your request if it will:
- Result in a fundamental alteration or administrative burden.
- Not be structurally possible.
- Not adequately resolve your problem.
- Create any unforeseen barriers.
- Logistically take time to complete.
For example: A tenant with a respiratory disability has a neighbor who smokes cigarettes excessively. The tenant requests to transfer to a different building as a reasonable accommodation. The tenant is only interested in transferring to one specific building, and does not want to live in any other buildings owned by management because the apartments are too small or in neighborhoods that they deem unfavorable. This tenant should consider ahead of time what may happen if they request to transfer to that one building as a reasonable accommodation:
- Do they know how long the wait is to move?
- Does the housing provider allow tenants to choose a building to transfer to, or is it based on availability?
- If the tenant refuses a particular building, can they go back on the wait list?
- Are there other tenants on the wait list to transfer to other buildings as a reasonable accommodation?
- Is the new building smoke free?
- What happens if new neighbors smoke in the building?
- How many times are tenants allowed to transfer units?
The tenant would probably want to think about all of this before making a request so they word their request appropriately and be prepared for all of the potential outcomes.
2. Find out if your housing provider has a specific reasonable accommodation/modification process:
- Identify the appropriate point of contact. Depending on where you live, this could be a landlord, property manager, or your condo association.
- If you live in a large or subsidized housing development, there might be a structured process to follow when you request your reasonable accommodation/modification.
3. If your disability-related need is not obvious, gather supporting documentation from a relevant medical provider:
- A relevant medical provider is someone who can speak to your disability-related limitations. This might be your doctor, therapist, or other licensed medical provider.
- With your medical provider, decide what wording you are comfortable using to describe your disability-related functional limitations. You do not have to disclose your diagnosis.
- Your supporting documentation should substantiate that you are a person with a disability, and be specific enough to link what you are requesting with your disability-related limitations.
- The role of the provider is to verify the disability-related limitations that are related to the request you are making. It is not the role of your provider to describe the particulars of what you are requesting (you will do this in your request to the housing provider) or speak to what may or may not be reasonable.
Example: A tenant has full body arthritis. When the tenant first moved into the building, they notified the housing provider that they had arthritis and could not use stairs because of their limitations. In response, the housing provider placed them in a ground floor unit after evaluating the tenant’s disability placard information. Months later, the same tenant requests that the housing provider install an automatic door opener on an interior entrance because their arthritis is impacting hand mobility. The tenant believes that they have already submitted adequate documentation regarding their disability based on their previous request. However, there is no direct link between the tenant’s disability placard and their inability to use the door. Instead, the tenant should speak to the difficulties they have using the door with their hands. This might include important details like why they cannot operate the door with their hands, that they are prevented from entering and exiting the building independently, and how often they need to use the door. Also, the tenant should submit supporting documentation from a provider that confirms that the tenant is a person with a disability, specifically pointing to the substantial limitations in their hands.
- If your disability-related need is obvious, the housing provider should not require any supporting documentation.
4. Write your reasonable accommodation request:
- While a request doesn’t have to follow a particular format, some housing providers may ask you to use specific forms. Whether you use a form or write your own letter, it is important to include specific details:
- Identify yourself as a person with a disability.
- State that you are requesting an accommodation/modification under Fair Housing Laws.
- Identify the disability-related difficulty you are experiencing with your current dwelling.
- Present your accommodation ideas.
- Request your provider’s accommodation ideas.
- Refer to attached supporting documentation, if applicable.
- Request a timely response from your housing provider by a specific date.
5. Keep records:
- It may be useful in future to have a record of relevant communications, important dates and times. Making your request in writing (like a letter or e-mail) may also facilitate a faster resolution.
- If a request is denied, written records provide you with evidence that you made a request, and what the response was, should you choose to file a complaint.
- If a request is approved, a record of the approval can be useful to refer to if there are questions or a change in housing staff in future.
6. The interactive process.
- After you make your initial request, your housing provider has an obligation to engage in the interactive process, which is a back-and-forth dialogue between provider and tenant leading to a decision about the accommodation. They might have questions and may present alternative accommodation options to address your request.
- After the interactive process and the evaluation of the request, the housing provider should approve or deny the request.
- If your housing provider simply does not respond, promptly reach back out requesting a response.
7. Next steps after a denial:
- Carefully evaluate the denial and any explanation or position the housing provider has given. If it seems as though they misunderstood some aspect, you might need to refine your argument, speak more clearly to your disability-related limitations, or consider an alternative accommodation option from your initial request. This can take you back into the interactive process.
- If your request is ignored, it is similar to a denial. However, make sure you follow up before assuming you are being ignored. If it turns out that a housing provider is intentionally being unresponsive, it will be helpful for you to reference this lack of communication if you choose to file a complaint.
- Some housing providers will have an appeal process. Often you will be notified of this together with the decision about your request.
- If you exhaust resolution options, it is never a bad idea to circle back with your provider to ensure that you truly are at an impasse.
- If you wish to lodge a formal complaint:
- get clear on the argument for your complaint: what part of the law are you saying was not followed?
- identify the appropriate enforcement agency (see Enforcement and recourse)
- collect and organize your records of evidence to support your argument
Specific scenario: elevator outages
Elevators are key access components for residents who are unable to use stairs. Housing providers are obligated to maintain and repair elevators. Whether outages are planned or unplanned, the elevator can be out of use for days. As with any sort of emergency planning, good planning and communication can minimize the disruptive impact of an elevator outage. When there is an outage, housing providers have a responsibility to make reasonable changes to normal policies, practices, and procedures for residents who are unable to walk up and down stairs for a disability-related reason. Read MOD's technical guidance on elevator outages.
Enforcement and recourse
If you think you have experienced discrimination based on your disability in housing, MOD can help you analyze the nuances of your unique situation, provide feedback, and help you understand your options before you launch into a complaint. MOD is not an enforcement agency and cannot investigate your allegations, but we can talk through your recourse options.
If you want to file a discrimination complaint, there are two different recourse options available. You can choose to file either at the Massachusetts Commission Against Discrimination (MCAD) or the Office of Fair Housing at the U.S. Department of Housing and Urban Development (HUD). Both of these enforcement agencies are responsible for investigating complaints of discrimination against housing providers. The state enforcement agency, MCAD, enforces MGL Chapter 151b. HUD enforces the Federal Fair Housing Act and Section 504 of the Rehab Act. Choose one or the other to lodge your complaint, but you may not file at both agencies.
While the experience of filing at MCAD and HUD is similar, consider whether your property is covered under the law that the particular agency enforces before deciding where to lodge a complaint. Upon receipt of a complaint, an enforcement agency will investigate the matter by collecting information from both sides, evaluating the situation, and ultimately determine whether or not there is a violation of the law.
Be advised that these enforcement agencies are neutral. They are not advocates for the person who filed a complaint. They investigate the facts presented by the person who filed the complaint and the housing entity’s response. Based on their review of both parties’ versions of events, they will decide whether the housing provider violated the law that they oversee.