We’re Already ADA Compliant, Isn’t That Enough?
January 25th, 2019 | By: Mircea Iosif, Esq.
The Americans With Disabilities Act (“ADA”) is a Federal civil rights law enacted in 1990, which provides protection to disabled individuals in public accommodations, employment, and other areas. Since the ADA’s inception, construction affecting rental housing has taken its requirements into account. From a landlord’s perspective, this generally applies to areas open to the public, such as the property management leasing office, parking lots, or other common areas. However, just because a complex is ADA compliant, this is not an ultimate defense for when a tenant requests an accommodation or other consideration due to their individual disability. This would be covered under the Fair Housing Act.
The Fair Housing Act (“FHA”), also a Federal civil rights law, was passed in 1968 to outlaw discriminatory real estate practices beyond just disability. These protected classes also include religion, race, color, national origin, sex, and familial status. Under the FHA, a tenant can request a reasonable accommodation, which is a change in rules, policies and/or procedures to allow a disabled individual (or person of another protected class) an equal opportunity for housing. For example, even if a property has a no pets policy, it can be required under the FHA to allow a reasonable accommodation for an individual with a valid need for an assistance animal.
Additionally, a tenant can request a reasonable modification, which generally refers to an actual physical or structural change to the unit or building. For example, installation of an individual handicap ramp. With regard to the costs of these modifications, if it is limited to the specific unit itself and not something the landlord either (a) needs to do regardless, or (b) will derive benefit from after the tenant leaves, then the costs may potentially be passed on to the tenant.
Further, if a housing complex is a recipient of federal funds and therefore subject to more oversight from the U.S. Department of Housing and Urban Development (“HUD”), accommodation requests are covered under Section 504 of the Rehabilitation Act of 1973. When a request is made, in order to show that it is necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability. However, if the accommodation would cause an undue financial or administrative burden or would fundamentally alter the housing program, the housing provider is not required to accommodate over and above that threshold.
Whatever the financial configuration of the rental property, compliance with all federal statutes and their state counterparts need to be adhered to. Moreover, as stated, even if all requirements are being met under the ADA, once protected individuals seek an accommodation, it needs to be addressed pursuant to the FHA as well.
The Bottom Line: Property owners need to be conscious that compliance with the Americans with Disabilities Act does not necessarily mean compliance with the Fair Housing Act. When a tenant requests a reasonable accommodation, just meeting ADA requirements may not be enough.