How to Avoid Fair Housing Problems When Applicants and Residents Use Wheelchairs

Federal fair housing law bans discrimination against people on the basis of disability. And mobility impairment is a disability under the law. So if you or your staff treat mobility-impaired applicants and residents in a discriminatory manner, you’re violating the law.

People with mobility impairments are particularly likely to face housing discrimination if they use wheelchairs. If you refuse to rent a unit to an applicant because he uses a wheelchair, you’ll violate fair housing law. The same applies if you rent to residents who use wheelchairs but you treat them in a discriminatory manner. For instance, you’ll violate the law if you impose special requirements or restrictions on these residents because of their wheelchair use, or refuse to bend your site’s rules, policies, or practices so residents who use wheelchairs can have equal use and enjoyment of your site.

The penalties for violating fair housing law are stiff, including HUD fines and lawsuits from individuals. But to help you stay out of trouble, we’ve come up with the following seven rules to help you reduce your chances of facing a discrimination complaint when dealing with these applicants and residents.

FOLLOW SEVEN RULES

Rule #1: Make Reasonable Accommodations and Modifications for Applicants or Residents Who Use Wheelchairs

Residents who use wheelchairs may ask you to make rule changes or provide special services, called “accommodations,” or make physical changes to their unit, called “modifications,” to allow them to use and enjoy the site on an equal basis with nondisabled residents.

Federal fair housing law and HUD rules say you must grant a reasonable accommodation or modification request if a resident or an applicant needs the accommodation or modification to allow him to “use and enjoy” your site and making it doesn’t put an “undue financial or administrative burden” on your site. When residents with disabilities ask you to make accommodations or modifications to their units and to common areas, you must grant the requests if they’re reasonable. If you don’t, you may be found to be violating fair housing law.

You must also evaluate modification requests on a case-by-case basis. Whether a request for a modification is reasonable depends on whether it’s necessary for the resident’s use and enjoyment of the unit and how much it will cost you. But you don’t have to grant a request if it would fundamentally alter the nature of the program under which your site operates; or impose an undue financial and administrative burden on your site [HUD Handbook 4350.3, par. 2-40].

HUD’s regulations offer some examples of some modifications that HUD generally requires you to grant if residents who use wheelchairs request them:

• Widening doorways to make rooms more accessible;
• Installing grab bars in bathrooms; and
• Lowering kitchen cabinets to a height suitable for persons in wheelchairs.

Rule #2: Make Sure Site Meets Federal Accessibility Requirements

Depending on when your site was built, you may have to comply with up to three sets of federal accessibility requirements. But some requirements apply only to parts of your site, such as areas open to the public.

Fair Housing Act (FHA) requirements. If any buildings at your site opened for first occupancy after March 13, 1991, they should have been built in compliance with the FHA’s accessibility requirements. These requirements say that all ground-floor and elevator-accessible units, public-use areas, and common areas must be accessible to people with mobility impairments. For example, slopes must be no steeper than 8.33 percent, and any slopes greater than 5 percent must have handrails.

Section 504 requirements. Federally assisted sites must also meet the physical accessibility requirements of Section 504 of the Rehabilitation Act. Section 504 requires sites with more than five units to have a minimum of 5 percent of units—or at least one unit—that are “physically accessible” for persons who have mobility impairments (under HUD regulations, this applies to sites constructed after July 1988). The Uniform Federal Accessibility Standards (UFAS) spells out minimum standards for physical accessibility. Sites that have undergone “substantial alterations” must also meet these minimum requirements.

Section 504 also requires a site to have completed a self-evaluation of its “policies and practices” to identify any that don’t meet Section 504 requirements. If “structural changes are needed to make the [site] readily accessible and usable by individuals with handicaps,” the site must develop a transition plan. For more information on completing the self-evaluation and transition plan, see Handbook 4350.3, paragraph 2-34.

ADA requirements for public-use areas. Make sure your site also complies with the Americans with Disabilities Act (ADA). The ADA requires owners to remove barriers that prevent people with disabilities from getting to and using public-use areas. Public-use areas are any areas that are open to the public, such as your leasing office. A common area set aside for residents only isn’t considered a public-use area.

You must remove barriers that keep people with wheelchairs out of your public-use areas only if barrier removal is “readily achievable.” This means that it must make both structural and financial sense to remove the barriers. If removing a barrier isn’t readily achievable, you don’t need to do it to comply with the ADA. For instance, if widening an entrance would mean tearing down beams on either side of the door that support the building, you don’t have to widen the entrance. Most of the time, the barriers that you must remove are ones like stairs, curbs, and narrow doorways that keep people in wheelchairs out of public-use areas.

If removing barriers to your public-use areas isn’t readily achievable, you still must do whatever is feasible to make an area accessible, or provide reasonable alternatives if it’s not. For instance, if you can’t widen the entrance to your leasing office to let wheelchairs through, you could arrange to meet with applicants who use wheelchairs at an accessible location outside your office. This could be your site’s recreation room or model unit.

Rule #3: Don’t Let Applicants’ Wheelchair Use Prompt Questions or Statements About Their Disability

If you or a member of your leasing staff discovers that an applicant uses a wheelchair, don’t take it as an invitation to say something about her disability or ask questions about it. Fair housing law bans owners and managers from making statements “that indicate any preference, limitation, or discrimination” based on an applicant’s disability when leasing a unit.

And under HUD’s regulations, you and your staff members can’t ask an applicant questions about the nature of her disability—or even whether she’s disabled. Here are some examples of questions you and your staff members mustn’t ask applicants who use wheelchairs:

• “How long have you been in a wheelchair?”
• “Could you walk at all without the wheelchair?”
• “Why do you use a motorized wheelchair instead of a regular one?”
• “Did you have any problem getting here in your wheelchair?”

Rule #4: Don’t ‘Steer’ Applicants Who Use Wheelchairs to Certain Units

Make sure you and your staff members don’t make assumptions about where an applicant wants to live because he uses a wheelchair. For instance, don’t assume that an applicant who uses a wheelchair would be interested only in a unit on the ground floor or away from potentially dangerous areas in your site. If you “steer” applicants—that is, guide, direct, or encourage applicants to live in a particular part of your site, or discourage them from living in other parts because of their disability—you’ll violate the fair housing law.

Rule #5: Don’t Give Wheelchair Users Preference over Others with Mobility Impairments

Make sure your site doesn’t set its own standards for determining whether an applicant or resident is disabled. Remember, the FHA defines “disability” very broadly. So if you impose additional requirements on applicants and residents to qualify as disabled, you’re illegally restricting who’s entitled to the law’s protection. An applicant who proves she’s disabled and needs one of your site’s specially equipped ground-floor units should get to live in the unit, whether or not she uses a wheelchair.

You may think it’s reasonable to deny specially equipped units to mobility-impaired applicants who don’t use wheelchairs so you can have those units available for future applicants who use wheelchairs. But such a practice is discriminatory because it requires you to make housing decisions based on how disabled you believe one applicant or resident is compared to another. Under the FHA, you mustn’t favor one disabled applicant or resident over another based on the type or extent of disability.

Rule #6: Don’t Make Residents Who Use Wheelchairs Pay for Damage Caused by Normal Wheelchair Use

Don’t ask residents to pay for damage to their units or common areas that normal wheelchair use caused. Residents who use wheelchairs need them to compensate for their disability. So if you make residents pay for damage they cause while using their wheelchairs properly, you could be illegally discriminating against these residents on the basis of their disability.

Generally speaking, HUD rules and state and local law bar you from withholding residents’ security deposits for damage to their units that’s caused by normal wear and tear. As long as that’s the case in your state or municipality, it follows that you mustn’t hold residents responsible for damage caused by normal wear and tear from wheelchair usage.

After a resident moves out of a unit, it inevitably shows signs that it was lived in. For instance, a resident who uses a wheelchair is likely to leave scuff marks on walls or create imperfections in the carpeting, despite the fact that he’s using the wheelchair properly. Residents who use wheelchairs may cause similar damage to your common areas when using their wheelchairs properly. For instance, say you just started renting to some residents who use wheelchairs. You may start to notice that you spend more money each month to maintain your common areas’ floors and carpeting. If you’re thinking about asking these residents to pay for the extra costs, think again. Any damage that normal wheelchair use may cause is very small. And if you ask residents to reimburse you, or if you sue them for this type of damage, they may accuse you of discrimination.

Instead, take steps to prevent damage from wheelchairs by installing devices such as kickplates, wall and corner guards, and floor mats to protect your site. You can find these devices at hospital supply companies or maintenance distributors.

Of course, you can ask residents to pay for damage caused by wheelchairs if the damage is excessive. For instance, if a resident gets angry and damages a wall in his unit or in a common area, you can withhold the resident’s security deposit or sue the resident for the damage—whether he hit the wall with a hammer or rammed his wheelchair into it. Make sure, however, to apply your policies consistently among all your residents. This means that you must seek no more payment for damage that residents who use wheelchairs cause than you would seek from other residents. And you must treat all residents the same when deciding whether to seek payment for damage at all.

Rule #7: If Your House Rules Ban Motorized Vehicles, Make an Exception for Motorized Wheelchairs

Many sites have a house rule that bans the use of motorized vehicles. If you have such a rule at your site, you no doubt adopted it to prevent residents who own mopeds or motorcycles from riding them in common areas, such as your hallways or around your pool, or from storing them in their units. Having such a rule is a sensible way of preventing property damage and keeping residents safe.

But although it’s not illegal to have a house rule banning motorized vehicles at your site, you can get into fair housing trouble if you don’t make an exception for residents who use motorized wheelchairs and who ask for an exception. Such residents may accuse you of illegal discrimination for refusing to make this particular type of reasonable accommodation.