U.S. DEPARTMENT OF JUSTICE
CIVIL RIGHTS DIVISION
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY
Washington, D.C.
March 5, 2008
JOINT STATEMENT OF
THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
AND THE DEPARTMENT OF JUSTICE
REASONABLE MODIFICATIONS UNDER THE
FAIR HOUSING ACT
Introduction
The Department of Justice (“DOJ”) and the Department of Housing and Urban
Development (“HUD”) are jointly responsible for enforcing the federal Fair Housing Act1 (the
“Act”), which prohibits discrimination in housing on the basis of race, color, religion, sex,
national origin, familial status, and disability.2 One type of disability discrimination prohibited
by the Act is a refusal to permit, at the expense of the person with a disability, reasonable
modifications of existing premises occupied or to be occupied by such person if such
modifications may be necessary to afford such person full enjoyment of the premises.3 HUD and
DOJ frequently respond to complaints alleging that housing providers have violated the Act by
refusing reasonable modifications to persons with disabilities. This Statement provides technical
assistance regarding the rights and obligations of persons with disabilities and housing providers
under the Act relating to reasonable modifications.4
1
The Fair Housing Act is codified at 42 U.S.C. §§ 3601-3619.
2
The Act uses the term “handicap” instead of “disability.” Both terms have the same legal
meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (noting that the definition of
“disability” in the Americans with Disabilities Act is drawn almost verbatim “from the definition
of ‘handicap’ contained in the Fair Housing Amendments Act of 1988”). This document uses
the term “disability,” which is more generally accepted.
3
4
42 U.S.C. § 3604(f)(3)(A).
This Statement does not address the principles relating to reasonable accommodations. For
further information see the Joint Statement of the Department of Housing and Urban
This Statement is not intended to provide specific guidance regarding the Act’s design and
construction requirements for multifamily dwellings built for first occupancy after March 13,
1991. Some of the reasonable modifications discussed in this Statement are features of
accessible design that are required for covered multifamily dwellings pursuant to the Act’s
design and construction requirements. As a result, people involved in the design and
construction of multifamily dwellings are advised to consult the Act at 42 U.S.C. § 3604(f)(3)(c),
the implementing regulations at 24 C.F.R. § 100.205, the Fair Housing Accessibility Guidelines,
and the Fair Housing Act Design Manual. All of these are available on HUD’s website at
www.hud.gov/offices/fheo/disabilities/index.cfm. Additional technical guidance on the design
and construction requirements can also be found on HUD’s website and the Fair Housing
Accessibility FIRST website at: http://www.fairhousingfirst.org.
Questions and Answers
1.
What types of discrimination against persons with disabilities does the Act prohibit?
The Act prohibits housing providers from discriminating against housing applicants or
residents because of their disability or the disability of anyone associated with them and from
treating persons with disabilities less favorably than others because of their disability. The Act
makes it unlawful for any person to refuse “to permit, at the expense of the [disabled] person,
reasonable modifications of existing premises occupied or to be occupied by such person if such
modifications may be necessary to afford such person full enjoyment of the premises, except
that, in the case of a rental, the landlord may where it is reasonable to do so condition permission
for a modification on the renter agreeing to restore the interior of the premises to the condition
that existed before the modification, reasonable wear and tear excepted.”5 The Act also makes it
unlawful for any person to refuse “to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to afford ... person(s) [with
disabilities] equal opportunity to use and enjoy a dwelling.” The Act also prohibits housing
providers from refusing residency to persons with disabilities, or, with some narrow exceptions6,
Development and the Department of Justice: Reasonable Accommodations Under the Fair
Housing Act, dated May 17, 2004. This Joint Statement is available at
www.hud.gov/offices/fheo/disabilities/index.cfm and
http://www.usdoj.gov/crt/housing/jointstatement_ra.htm. See also 42 U.S.C. § 3604(f)(3)(B).
This Statement also does not discuss in depth the obligations of housing providers who are
recipients of federal financial assistance to make and pay for structural changes to units and
common and public areas that are needed as a reasonable accommodation for a person’s
disability. See Question 31.
5
42 U.S.C. § 3604(f)(3)(A). HUD regulations pertaining to reasonable modifications may be
found at 24 C.F.R. § 100.203.
6
The Act contemplates certain limits to the receipt of reasonable accommodations or reasonable
modifications. For example, a tenant may be required to deposit money into an interest bearing
2
placing conditions on their residency, because those persons may require reasonable
modifications or reasonable accommodations.
2.
What is a reasonable modification under the Fair Housing Act?
A reasonable modification is a structural change made to existing premises, occupied or
to be occupied by a person with a disability, in order to afford such person full enjoyment of the
premises. Reasonable modifications can include structural changes to interiors and exteriors of
dwellings and to common and public use areas. A request for a reasonable modification may be
made at any time during the tenancy. The Act makes it unlawful for a housing provider or
homeowners’ association to refuse to allow a reasonable modification to the premises when such
a modification may be necessary to afford persons with disabilities full enjoyment of the
premises.
To show that a requested modification may be necessary, there must be an identifiable
relationship, or nexus, between the requested modification and the individual’s disability.
Further, the modification must be “reasonable.” Examples of modifications that typically are
reasonable include widening doorways to make rooms more accessible for persons in
wheelchairs; installing grab bars in bathrooms; lowering kitchen cabinets to a height suitable for
persons in wheelchairs; adding a ramp to make a primary entrance accessible for persons in
wheelchairs; or altering a walkway to provide access to a public or common use area. These
examples of reasonable modifications are not exhaustive.
3.
Who is responsible for the expense of making a reasonable modification?
The Fair Housing Act provides that while the housing provider must permit the
modification, the tenant is responsible for paying the cost of the modification.
4.
Who qualifies as a person with a disability under the Act?
The Act defines a person with a disability to include (1) individuals with a physical or
mental impairment that substantially limits one or more major life activities; (2) individuals who
are regarded as having such an impairment; and (3) individuals with a record of such an
impairment.
The term “physical or mental impairment” includes, but is not limited to, such diseases
and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human
Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other
account to ensure that funds are available to restore the interior of a dwelling to its previous
state. See, e.g., Question 21 below. A reasonable accommodation can be conditioned on meeting
reasonable safety requirements, such as requiring persons who use motorized wheelchairs to
operate them in a manner that does not pose a risk to the safety of others or cause damage to
other persons’ property. See Joint Statement on Reasonable Accommodations, Question 11.
3
than addiction caused by current, illegal use of a controlled substance) and alcoholism.
The term “substantially limits” suggests that the limitation is “significant” or “to a large
degree.”
The term “major life activity” means those activities that are of central importance to
daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s
self, learning, and speaking. This list of major life activities is not exhaustive.
5.
Who is entitled to a reasonable modification under the Fair Housing Act?
Persons who meet the Fair Housing Act’s definition of “person with a disability” may be
entitled to a reasonable modification under the Act. However, there must be an identifiable
relationship, or nexus, between the requested modification and the individual’s disability. If no
such nexus exists, then the housing provider may refuse to allow the requested modification.
Example 1: A tenant, whose arthritis impairs the use of her hands and causes her
substantial difficulty in using the doorknobs in her apartment, wishes to replace the doorknobs
with levers. Since there is a relationship between the tenant’s disability and the requested
modification and the modification is reasonable, the housing provider must allow her to make the
modification at the tenant’s expense.
Example 2: A homeowner with a mobility disability asks the condo association to
permit him to change his roofing from shaker shingles to clay tiles and fiberglass shingles
because he alleges that the shingles are less fireproof and put him at greater risk during a fire.
There is no evidence that the shingles permitted by the homeowner’s association provide
inadequate fire protection and the person with the disability has not identified a nexus between
his disability and the need for clay tiles and fiberglass shingles. The homeowner’s association is
not required to permit the homeowner’s modification because the homeowner’s request is not
reasonable and there is no nexus between the request and the disability.
6.
If a disability is not obvious, what kinds of information may a housing provider
request from the person with a disability in support of a requested reasonable
modification?
A housing provider may not ordinarily inquire as to the nature and severity of an
individual’s disability. However, in response to a request for a reasonable modification, a
housing provider may request reliable disability-related information that (1) is necessary to
verify that the person meets the Act’s definition of disability (i.e., has a physical or mental
impairment that substantially limits one or more major life activities), (2) describes the needed
modification, and (3) shows the relationship between the person’s disability and the need for the
requested modification. Depending on the individual’s circumstances, information verifying that
the person meets the Act’s definition of disability can usually be provided by the individual
herself (e.g., proof that an individual under 65 years of age receives Supplemental Security
4
Income or Social Security Disability Insurance benefits8 or a credible statement by the
individual). A doctor or other medical professional, a peer support group, a non-medical service
agency, or a reliable third party who is in a position to know about the individual’s disability
may also provide verification of a disability. In most cases, an individual’s medical records or
detailed information about the nature of a person’s disability is not necessary for this inquiry.
Once a housing provider has established that a person meets the Act’s definition of
disability, the provider’s request for documentation should seek only the information that is
necessary to evaluate if the reasonable modification is needed because of a disability. Such
information must be kept confidential and must not be shared with other persons unless they
need the information to make or assess a decision to grant or deny a reasonable modification
request or unless disclosure is required by law (e.g., a court-issued subpoena requiring
disclosure).
7.
What kinds of information, if any, may a housing provider request from a person
with an obvious or known disability who is requesting a reasonable modification?
A housing provider is entitled to obtain information that is necessary to evaluate whether
a requested reasonable modification may be necessary because of a disability. If a person’s
disability is obvious, or otherwise known to the housing provider, and if the need for the
requested modification is also readily apparent or known, then the provider may not request any
additional information about the requester’s disability or the disability-related need for the
modification.
If the requester’s disability is known or readily apparent to the provider, but the need for
the modification is not readily apparent or known, the provider may request only information
that is necessary to evaluate the disability-related need for the modification.
Example 1: An applicant with an obvious mobility impairment who uses a motorized
scooter to move around asks the housing provider to permit her to install a ramp at the entrance
of the apartment building. Since the physical disability (i.e., difficulty walking) and the
disability-related need for the requested modification are both readily apparent, the provider may
not require the applicant to provide any additional information about her disability or the need
for the requested modification.
8
Persons who meet the definition of disability for purposes of receiving Supplemental Security
Income (“SSI”) or Social Security Disability Income (“SSDI”) benefits in most cases meet the
definition of a disability under the Fair Housing Act, although the converse may not be true.
See, e.g., Cleveland v. Policy Management Systems Corp, 526 U.S. 795, 797 (1999) (noting that
SSDI provides benefits to a person with a disability so severe that she is unable to do her
previous work and cannot engage in any other kind of substantial gainful work whereas a person
pursuing an action for disability discrimination under the Americans with Disabilities Act may
state a claim that “with a reasonable accommodation” she could perform the essential functions
of the job).
5
Example 2: A deaf tenant asks his housing provider to allow him to install extra
electrical lines and a cable line so the tenant can use computer equipment that helps him
communicate with others. If the tenant’s disability is known, the housing provider may not
require him to document his disability; however, since the need for the electrical and cable lines
may not be apparent, the housing provider may request information that is necessary to support
the disability-related need for the requested modification.
8.
Who must comply with the Fair Housing Act’s reasonable modification
requirements?
Any person or entity engaging in prohibited conduct – i.e., refusing to allow an
individual to make reasonable modifications when such modifications may be necessary to
afford a person with a disability full enjoyment of the premises – may be held liable unless they
fall within an exception to the Act’s coverage. Courts have applied the Act to individuals,
corporations, associations and others involved in the provision of housing and residential
lending, including property owners, housing managers, homeowners and condominium
associations, lenders, real estate agents, and brokerage services. Courts have also applied the
Act to state and local governments, most often in the context of exclusionary zoning or other
land-use decisions. See, e.g., City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 729 (1995);
Project Life v. Glendening, 139 F. Supp. 2d 703, 710 (D. Md. 2001), aff’d, 2002 WL 2012545
(4th Cir. 2002).
9.
What is the difference between a reasonable accommodation and a reasonable
modification under the Fair Housing Act?9
Under the Fair Housing Act, a reasonable modification is a structural change made to the
premises whereas a reasonable accommodation is a change, exception, or adjustment to a rule,
policy, practice, or service. A person with a disability may need either a reasonable
accommodation or a reasonable modification, or both, in order to have an equal opportunity to
use and enjoy a dwelling, including public and common use spaces. Generally, under the Fair
Housing Act, the housing provider is responsible for the costs associated with a reasonable
accommodation unless it is an undue financial and administrative burden, while the tenant or
someone acting on the tenant’s behalf, is responsible for costs associated with a reasonable
modification. See Reasonable Accommodation Statement, Questions 7 and 8.
Example 1: Because of a mobility disability, a tenant wants to install grab bars in the
bathroom. This is a reasonable modification and must be permitted at the tenant’s expense.
9
Housing providers that receive federal financial assistance are also subject to the requirements
of Section 504 of the Rehabilitation Act of l973. 29 U.S.C. § 794. Section 504, and its
implementing regulations at 24 C.F.R. Part 8, prohibit discrimination based on disability, and
obligate housing providers to make and pay for structural changes to facilities, if needed as a
reasonable accommodation for applicants and tenants with disabilities, unless doing so poses an
undue financial and administrative burden. See Question 31.
6
Example 2: Because of a hearing disability, a tenant wishes to install a peephole in her
door so she can see who is at the door before she opens it. This is a reasonable modification and
must be permitted at the tenant’s expense.
Example 3: Because of a mobility disability, a tenant wants to install a ramp outside the
building in a common area. This is a reasonable modification and must be permitted at the
tenant’s expense. See also Questions 19, 20 and 21.
Example 4: Because of a vision disability, a tenant requests permission to have a guide
dog reside with her in her apartment. The housing provider has a “no-pets” policy. This is a
request for a reasonable accommodation, and the housing provider must grant the
accommodation.
10.
Are reasonable modifications restricted to the interior of a dwelling?
No. Reasonable modifications are not limited to the interior of a dwelling. Reasonable
modifications may also be made to public and common use areas such as widening entrances to
fitness centers or laundry rooms, or for changes to exteriors of dwelling units such as installing a
ramp at the entrance to a dwelling.
11.
Is a request for a parking space because of a physical disability a reasonable
accommodation or a reasonable modification?
Courts have treated requests for parking spaces as requests for a reasonable
accommodation and have placed the responsibility for providing the parking space on the
housing provider, even if provision of an accessible or assigned parking space results in some
cost to the provider. For example, courts have required a housing provider to provide an
assigned space even though the housing provider had a policy of not assigning parking spaces or
had a waiting list for available parking. However, housing providers may not require persons
with disabilities to pay extra fees as a condition of receiving accessible parking spaces.
Providing a parking accommodation could include creating signage, repainting markings,
redistributing spaces, or creating curb cuts. This list is not exhaustive.
12.
What if the structural changes being requested by the tenant or applicant are in a
building that is subject to the design and construction requirements of the Fair Housing
Act and the requested structural changes are a feature of accessible design that should
have already existed in the unit or common area, e.g., doorways wide enough to
accommodate a wheelchair, or an accessible entryway to a unit.
7
The Fair Housing Act provides that covered multifamily dwellings built for first
occupancy after March 13, 1991, shall be designed and constructed to meet certain minimum
accessibility and adaptability standards. If any of the structural changes needed by the tenant are
ones that should have been included in the unit or public and common use area when constructed
then the housing provider may be responsible for providing and paying for those requested
structural changes. However, if the requested structural changes are not a feature of accessible
design that should have already existed in the building pursuant to the design and construction
requirements under the Act, then the tenant is responsible for paying for the cost of the structural
changes as a reasonable modification.
Although the design and construction provisions only apply to certain multifamily
dwellings built for first occupancy since 1991, a tenant may request reasonable modifications to
housing built prior to that date. In such cases, the housing provider must allow the
modifications, and the tenant is responsible for paying for the costs under the Fair Housing Act.
For a discussion of the design and construction requirements of the Act, and their
applicability, see HUD’s website at: www.hud.gov/offices/fheo/disabilities/index.cfm and the
Fair Housing Accessibility FIRST website at: http://www.fairhousingfirst.org.
Example 1: A tenant with a disability who uses a wheelchair resides in a ground floor
apartment in a non-elevator building that was built in 1995. Buildings built for first occupancy
after March 13, 1991 are covered by the design and construction requirements of the Fair
Housing Act. Because the building is a non-elevator building, all ground floor units must meet
the minimum accessibility requirements of the Act. The doors in the apartment are not wide
enough for passage using a wheelchair in violation of the design and construction requirements
but can be made so through retrofitting. Under these circumstances, one federal court has held
that the tenant may have a potential claim against the housing provider.
Example 2: A tenant with a disability resides in an apartment in a building that was built
in 1987. The doors in the unit are not wide enough for passage using a wheelchair but can be
made so through retrofitting. If the tenant meets the other requirements for obtaining a
modification, the tenant may widen the doorways, at her own expense.
Example 3: A tenant with a disability resides in an apartment in a building that was built
in 1993 in compliance with the design and construction requirements of the Fair Housing Act.
The tenant wants to install grab bars in the bathroom because of her disability. Provided that the
tenant meets the other requirements for obtaining a modification, the tenant may install the grab
bars at her own expense.
13.
Who is responsible for expenses associated with a reasonable modification, e.g., for
upkeep or maintenance?
The tenant is responsible for upkeep and maintenance of a modification that is used
exclusively by her. If a modification is made to a common area that is normally maintained by
the housing provider, then the housing provider is responsible for the upkeep and maintenance of
the modification. If a modification is made to a common area that is not normally maintained by
8
the housing provider, then the housing provider has no responsibility under the Fair Housing Act
to maintain the modification.
Example 1: Because of a mobility disability, a tenant, at her own expense, installs a lift
inside her unit to allow her access to a second story. She is required to maintain the lift at her
expense because it is not in a common area.
Example 2: Because of a mobility disability, a tenant installs a ramp in the lobby of a
multifamily building at her own expense. The ramp is used by other tenants and the public as
well as the tenant with the disability. The housing provider is responsible for maintaining the
ramp.
Example 3: A tenant leases a detached, single-family home. Because of a mobility
disability, the tenant installs a ramp at the outside entrance to the home. The housing provider
provides no snow removal services, and the lease agreement specifically states that snow
removal is the responsibility of the individual tenant. Under these circumstances, the housing
provider has no responsibility under the Fair Housing Act to remove snow on the tenant’s ramp.
However, if the housing provider normally provides snow removal for the outside of the building
and the common areas, the housing provider is responsible for removing the snow from the ramp
as well.
14.
In addition to current residents, are prospective tenants and buyers of housing
protected by the reasonable modification provisions of the Fair Housing Act?
Yes. A person may make a request for a reasonable modification at any time. An
individual may request a reasonable modification of the dwelling at the time that the potential
tenancy or purchase is discussed. Under the Act, a housing provider cannot deny or restrict
access to housing because a request for a reasonable modification is made. Such conduct would
constitute discrimination. The modification does not have to be made, however, unless it is
reasonable. See Questions 2, 16, 21 and 23.
15.
When and how should an individual request permission to make a modification?
Under the Act, a resident or an applicant for housing makes a reasonable modification
request whenever she makes clear to the housing provider that she is requesting permission to
make a structural change to the premises because of her disability. She should explain that she
has a disability, if not readily apparent or not known to the housing provider, the type of
modification she is requesting, and the relationship between the requested modification and her
disability.
An applicant or resident is not entitled to receive a reasonable modification unless she
requests one. However, the Fair Housing Act does not require that a request be made in a
particular manner or at a particular time. A person with a disability need not personally make
the reasonable modification request; the request can be made by a family member or someone
else who is acting on her behalf. An individual making a reasonable modification request does
9
not need to mention the Act or use the words “reasonable modification.” However, the requester
must make the request in a manner that a reasonable person would understand to be a request for
permission to make a structural change because of a disability.
Although a reasonable modification request can be made orally or in writing, it is usually
helpful for both the resident and the housing provider if the request is made in writing. This will
help prevent misunderstandings regarding what is being requested, or whether the request was
made. To facilitate the processing and consideration of the request, residents or prospective
residents may wish to check with a housing provider in advance to determine if the provider has
a preference regarding the manner in which the request is made. However, housing providers
must give appropriate consideration to reasonable modification requests even if the requester
makes the request orally or does not use the provider's preferred forms or procedures for making
such requests.
16.
Does a person with a disability have to have the housing provider’s approval before
making a reasonable modification to the dwelling?
Yes. A person with a disability must have the housing provider’s approval before
making the modification. However, if the person with a disability meets the requirements under
the Act for a reasonable modification and provides the relevant documents and assurances, the
housing provider cannot deny the request.
17.
What if the housing provider fails to act promptly on a reasonable modification
request?
A provider has an obligation to provide prompt responses to a reasonable modification
request. An undue delay in responding to a reasonable modification request may be deemed a
failure to permit a reasonable modification.
18.
What if the housing provider proposes that the tenant move to a different unit in
lieu of making a proposed modification?
The housing provider cannot insist that a tenant move to a different unit in lieu of
allowing the tenant to make a modification that complies with the requirements for reasonable
modifications. See Questions 2, 21 and 23. Housing providers should be aware that persons
with disabilities typically have the most accurate knowledge regarding the functional limitations
posed by their disability.
Example: As a result of a mobility disability, a tenant requests that he be permitted, at
his expense, to install a ramp so that he can access his apartment using his motorized wheelchair.
The existing entrance to his dwelling is not wheelchair accessible because the route to the front
door requires going up a step. The housing provider proposes that in lieu of installing the ramp,
the tenant move to a different unit in the building. The tenant is not obligated to accept the
alternative proposed by the housing provider, as his request to modify his unit is reasonable and
must be approved.
10
19.
What if the housing provider wants an alternative modification or alternative
design for the proposed modification that does not cost more but that the housing provider
considers more aesthetically pleasing?
In general, the housing provider cannot insist on an alternative modification or an
alternative design if the tenant complies with the requirements for reasonable modifications. See
Questions 2, 21 and 23. If the modification is to the interior of the unit and must be restored to
its original condition when the tenant moves out, then the housing provider cannot require that
its design be used instead of the tenant’s design. However, if the modification is to a common
area or an aspect of the interior of the unit that would not have to be restored because it would
not be reasonable to do so, and if the housing provider’s proposed design imposes no additional
costs and still meets the tenant’s needs, then the modification should be done in accordance with
the housing provider’s design. See Question 24 for a discussion of the restoration requirements.
Example 1: As a result of a mobility disability, a tenant requests that he be permitted, at
his expense, to install a ramp so that he can access his apartment using his motorized wheelchair.
The existing entrance to his dwelling is not wheelchair accessible because the route to the front
door requires going up a step. The housing provider proposes an alternative design for a ramp
but the alternative design costs more and does not meet the tenant’s needs. The tenant is not
obligated to accept the alternative modification, as his request to modify his unit is reasonable
and must be approved.
Example 2: As a result of a mobility disability, a tenant requests permission to widen a
doorway to allow passage with her wheelchair. All of the doorways in the unit are trimmed with
a decorative trim molding that does not cost any more than the standard trim molding. Because
in usual circumstances it would not be reasonable to require that the doorway be restored at the
end of the tenancy, the tenant should use the decorative trim when he widens the doorway.
20.
What if the housing provider wants a more costly design for the requested
modification?
If the housing provider wishes a modification to be made with more costly materials, in
order to satisfy the landlord’s aesthetic standards, the tenant must agree only if the housing
provider pays those additional costs. Further, as discussed in Questions 21 and 23 below,
housing providers may require that the tenant obtain all necessary building permits and may
require that the work be performed in a workmanlike manner. If the housing provider requires
more costly materials be used to satisfy her workmanship preferences beyond the requirements
of the applicable local codes, the tenant must agree only if the housing provider pays for those
additional costs as well. In such a case, however, the housing provider’s design must still meet
the tenant’s needs.
21.
What types of documents and assurances may a housing provider require regarding
the modification before granting the reasonable modification?
11
A housing provider may require that a request for a reasonable modification include a
description of the proposed modification both before changes are made to the dwelling and
before granting the modification. A description of the modification to be made may be provided
to a housing provider either orally or in writing depending on the extent and nature of the
proposed modification. A housing provider may also require that the tenant obtain any building
permits needed to make the modifications, and that the work be performed in a workmanlike
manner.
The regulations implementing the Fair Housing Act state that housing providers
generally cannot impose conditions on a proposed reasonable modification. For example, a
housing provider cannot require that the tenant obtain additional insurance or increase the
security deposit as a condition that must be met before the modification will be allowed.
However, the Preamble to the Final Regulations also indicates that there are some conditions that
can be placed on a tenant requesting a reasonable modification. For example, in certain limited
and narrow circumstances, a housing provider may require that the tenant deposit money into an
interest bearing account to ensure that funds are available to restore the interior of a dwelling to
its previous state, ordinary wear and tear excepted. Imposing conditions not contemplated by the
Fair Housing Act and its implementing regulations may be the same as an illegal refusal to
permit the modification.
22.
May a housing provider or homeowner’s association condition approval of the
requested modification on the requester obtaining special liability insurance?
No. Imposition of such a requirement would constitute a violation of the Fair Housing
Act.
Example: Because of a mobility disability, a tenant wants to install a ramp outside his
unit. The housing provider informs the tenant that the ramp may be installed, but only after the
tenant obtains separate liability insurance for the ramp out of concern for the housing provider’s
potential liability. The housing provider may not impose a requirement of liability insurance as a
condition of approval of the ramp.
23.
Once the housing provider has agreed to a reasonable modification, may she insist
that a particular contractor be used to perform the work?
No. The housing provider cannot insist that a particular contractor do the work. The
housing provider may only require that whoever does the work is reasonably able to complete
the work in a workmanlike manner and obtain all necessary building permits.
24.
If a person with a disability has made reasonable modifications to the interior of the
dwelling, must she restore all of them when she moves out?
The tenant is obligated to restore those portions of the interior of the dwelling to their
previous condition only where “it is reasonable to do so” and where the housing provider has
requested the restoration. The tenant is not responsible for expenses associated with reasonable
12
wear and tear. In general, if the modifications do not affect the housing provider’s or subsequent
tenant’s use or enjoyment of the premises, the tenant cannot be required to restore the
modifications to their prior state. A housing provider may choose to keep the modifications in
place at the end of the tenancy. See also Question 28.
Example 1: Because the tenant uses a wheelchair, she obtained permission from her
housing provider to remove the base cabinets and lower the kitchen sink to provide for greater
accessibility. It is reasonable for the housing provider to ask the tenant to replace the cabinets
and raise the sink back to its original height.
Example 2: Because of a mobility disability, a tenant obtained approval from the
housing provider to install grab bars in the bathroom. As part of the installation, the contractor
had to construct reinforcements on the underside of the wall. These reinforcements are not
visible and do not detract from the use of the apartment. It is reasonable for the housing provider
to require the tenant to remove the grab bars, but it is not reasonable for the housing provider to
require the tenant to remove the reinforcements.
Example 3: Because of a mobility disability, a tenant obtained approval from the
housing provider to widen doorways to allow him to maneuver in his wheelchair. In usual
circumstances, it is not reasonable for the housing provider to require him to restore the
doorways to their prior width.
25.
Of the reasonable modifications made to the interior of a dwelling that must be
restored, must the person with a disability pay to make those restorations when she moves
out?
Yes. Reasonable restorations of the dwelling required as a result of modifications made
to the interior of the dwelling must be paid for by the tenant unless the next occupant of the
dwelling wants to retain the reasonable modifications and where it is reasonable to do so, the
next occupant is willing to establish a new interest bearing escrow account. The subsequent
tenant would have to restore the modifications to the prior condition at the end of his tenancy if it
is reasonable to do so and if requested by the housing provider. See also Question 24.
26.
If a person with a disability has made a reasonable modification to the exterior of
the dwelling, or a common area, must she restore it to its original condition when she
moves out?
No. The Fair Housing Act expressly provides that housing providers may only require
restoration of modifications made to interiors of the dwelling at the end of the tenancy.
Reasonable modifications such as ramps to the front door of the dwelling or modifications made
to laundry rooms or building entrances are not required to be restored.
27.
May a housing provider increase or require a person with a disability to pay a
security deposit if she requests a reasonable modification?
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No. The housing provider may not require an increased security deposit as the result of a
request for a reasonable modification, nor may a housing provider require a tenant to pay a
security deposit when one is not customarily required. However, a housing provider may be able
to take other steps to ensure that money will be available to pay for restoration of the interior of
the premises at the end of the tenancy. See Questions 21 and 28.
28.
May a housing provider take other steps to ensure that money will be available to
pay for restoration of the interior of the premises at the end of the tenancy?
Where it is necessary in order to ensure with reasonable certainty that funds will be
available to pay for the restorations at the end of the tenancy, the housing provider may negotiate
with the tenant as part of a restoration agreement a provision that requires the tenant to make
payments into an interest-bearing escrow account. A housing provider may not routinely require
that tenants place money in escrow accounts when a modification is sought. Both the amount
and the terms of the escrow payment are subject to negotiation between the housing provider and
the tenant.
Simply because an individual has a disability does not mean that she is less creditworthy
than an individual without a disability. The decision to require that money be placed in an
escrow account should be based on the following factors: 1) the extent and nature of the
proposed modifications; 2) the expected duration of the lease; 3) the credit and tenancy history
of the individual tenant; and 4) other information that may bear on the risk to the housing
provider that the premises will not be restored.
If the housing provider decides to require payment into an escrow account, the amount of
money to be placed in the account cannot exceed the cost of restoring the modifications, and the
period of time during which the tenant makes payment into the escrow account must be
reasonable. Although a housing provider may require that funds be placed in escrow, it does not
automatically mean that the full amount of money needed to make the future restorations can be
required to be paid at the time that the modifications are sought. In addition, it is important to
note that interest from the account accrues to the benefit of the tenant. If an escrow account is
established, and the housing provider later decides not to have the unit restored, then all funds in
the account, including the interest, must be promptly returned to the tenant.
Example 1: Because of a mobility disability, a tenant requests a reasonable
modification. The modification includes installation of grab bars in the bathroom. The tenant
has an excellent credit history and has lived in the apartment for five years before becoming
disabled. Under these circumstances, it may not be reasonable to require payment into an
escrow account.
Example 2: Because of a mobility disability, a new tenant with a poor credit history
wants to lower the kitchen cabinets to a more accessible height. It may be reasonable for the
housing provider to require payment into an interest bearing escrow account to ensure that funds
are available for restoration.
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Example 3: A housing provider requires all tenants with disabilities to pay a set sum
into an interest bearing escrow account before approving any request for a reasonable
modification. The amount required by the housing provider has no relationship to the actual cost
of the restoration. This type of requirement violates the Fair Housing Act.
29.
What if a person with a disability moves into a rental unit and wants the carpet
taken up because her wheelchair does not move easily across carpeting? Is that a
reasonable accommodation or modification?
Depending on the circumstances, removal of carpeting may be either a reasonable
accommodation or a reasonable modification.
Example 1: If the housing provider has a practice of not permitting a tenant to change
flooring in a unit and there is a smooth, finished floor underneath the carpeting, generally,
allowing the tenant to remove the carpet would be a reasonable accommodation.
Example 2: If there is no finished flooring underneath the carpeting, generally,
removing the carpeting and installing a finished floor would be a reasonable modification that
would have to be done at the tenant’s expense. If the finished floor installed by the tenant does
not affect the housing provider’s or subsequent tenant’s use or enjoyment of the premises, the
tenant would not have to restore the carpeting at the conclusion of the tenancy. See Questions 24
and 25.
Example 3: If the housing provider has a practice of replacing the carpeting before a
new tenant moves in, and there is an existing smooth, finished floor underneath, then it would be
a reasonable accommodation of his normal practice of installing new carpeting for the housing
provider to just take up the old carpeting and wait until the tenant with a mobility disability
moves out to put new carpeting down.
30.
Who is responsible for paying for the costs of structural changes to a dwelling unit
that has not yet been constructed if a purchaser with a disability needs different or
additional features to make the unit meet her disability-related needs?
If the dwelling unit is not subject to the design and construction requirements (i.e., a
detached single family home or a multi-story townhouse without an elevator), then the purchaser
is responsible for the additional costs associated with the structural changes. The purchaser is
responsible for any additional cost that the structural changes might create over and above what
the original design would have cost.
If the unit being purchased is subject to the design and construction requirements of the
Fair Housing Act, then all costs associated with incorporating the features required by the Act
are borne by the builder. If a purchaser with a disability needs different or additional features
added to a unit under construction or about to be constructed beyond those already required by
the Act, and it would cost the builder more to provide the requested features, the structural
changes would be considered a reasonable modification and the additional costs would have to
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be borne by the purchaser. The purchaser is responsible for any additional cost that the
structural changes might create over and above what the original design would have cost.
Example 1: A buyer with a mobility disability is purchasing a single family dwelling
under construction and asks for a bathroom sink with a floorless base cabinet with retractable
doors that allows the buyer to position his wheelchair under the sink. If the cabinet costs more
than the standard vanity cabinet provided by the builder, the buyer is responsible for the
additional cost, not the full cost of the requested cabinet. If, however, the alternative cabinet
requested by the buyer costs less than or the same as the one normally provided by the builder,
and the installation costs are also the same or less, then the builder should install the requested
cabinet without any additional cost to the buyer.
Example 2: A buyer with a mobility disability is purchasing a ground floor unit in a
detached townhouse that is designed with a concrete step at the front door. The buyer requests
that the builder grade the entrance to eliminate the need for the step. If the cost of providing the
at-grade entrance is no greater than the cost of building the concrete step, then the builder would
have to provide the at-grade entrance without additional charge to the purchaser.
Example 3: A buyer with a mobility disability is purchasing a unit that is subject to the
design and construction requirements of the Fair Housing Act. The buyer wishes to have grab
bars installed in the unit as a reasonable modification to the bathroom. The builder is
responsible for installing and paying for the wall reinforcements for the grab bars because these
reinforcements are required under the design and construction provisions of the Act. The buyer
is responsible for the costs of installing and paying for the grab bars.
31.
Are the rules the same if a person with a disability lives in housing that receives
federal financial assistance and the needed structural changes to the unit or common area
are the result of the tenant having a disability?
Housing that receives federal financial assistance is covered by both the Fair Housing
Act and Section 504 of the Rehabilitation Act of 1973. Under regulations implementing Section
504, structural changes needed by an applicant or resident with a disability in housing receiving
federal financial assistance are considered reasonable accommodations. They must be paid for
by the housing provider unless providing them would be an undue financial and administrative
burden or a fundamental alteration of the program or unless the housing provider can
accommodate the individual’s needs through other means. Housing that receives federal
financial assistance and that is provided by state or local entities may also be covered by Title II
of the Americans with Disabilities Act.
Example 1: A tenant who uses a wheelchair and who lives in privately owned housing
needs a roll-in shower in order to bathe independently. Under the Fair Housing Act the tenant
would be responsible for the costs of installing the roll-in shower as a reasonable modification to
his unit.
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Example 2: A tenant who uses a wheelchair and who lives in housing that receives
federal financial assistance needs a roll-in shower in order to bathe independently. Under
Section 504 of the Rehabilitation Act of 1973, the housing provider would be obligated to pay
for and install the roll-in shower as a reasonable accommodation to the tenant unless doing so
was an undue financial and administrative burden or unless the housing provider could meet the
tenant’s disability-related needs by transferring the tenant to another appropriate unit that
contains a roll-in shower.
HUD has provided more detailed information about Section 504’s requirements. See
www.hud.gov/offices/fheo/disabilities/sect504.cfm.
32.
If a person believes that she has been unlawfully denied a reasonable modification,
what should that person do if she wants to challenge that denial under the Act?
When a person with a disability believes that she has been subjected to a discriminatory
housing practice, including a provider’s wrongful denial of a request for a reasonable
modification, she may file a complaint with HUD within one year after the alleged denial or may
file a lawsuit in federal district court within two years of the alleged denial. If a complaint is
filed, HUD will investigate the complaint at no cost to the person with a disability.
There are several ways that a person may file a complaint with HUD:
•
By placing a toll-free call to 1-800-669-9777 or TTY 1-800-927-9275;
•
By completing the “on-line” complaint form available on the HUD internet
site: http://www.hud.gov; or
•
By mailing a completed complaint form or letter to:
Office of Fair Housing and Equal Opportunity
Department of Housing & Urban Development
451 Seventh Street, S.W., Room 5204
Washington, DC 20410-2000
Upon request, HUD will provide printed materials in alternate formats (large print, audio
tapes, or Braille) and provide complainants with assistance in reading and completing forms.
The Civil Rights Division of the Justice Department brings lawsuits in federal courts
across the country to end discriminatory practices and to seek monetary and other relief for
individuals whose rights under the Fair Housing Act have been violated. The Civil Rights
Division initiates lawsuits when it has reason to believe that a person or entity is involved in a
“pattern or practice” of discrimination or when there has been a denial of rights to a group of
persons that raises an issue of general public importance. The Division also participates as
amicus curiae in federal court cases that raise important legal questions involving the application
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and/or interpretation of the Act. To alert the Justice Department to matters involving a pattern or
practice of discrimination, matters involving the denial of rights to groups of persons, or lawsuits
raising issues that may be appropriate for amicus participation, contact:
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section – G St.
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
For more information on the types of housing discrimination cases handled by the Civil
Rights Division, please refer to the Housing and Civil Enforcement Section’s website at
http://www.usdoj.gov/crt/housing/hcehome.html.
A HUD or Department of Justice decision not to proceed with a Fair Housing Act matter
does not foreclose private plaintiffs from pursuing a private lawsuit. However, litigation can be
an expensive, time-consuming, and uncertain process for all parties. HUD and the Department
of Justice encourage parties to Fair Housing Act disputes to explore all reasonable alternatives to
litigation, including alternative dispute resolution procedures, such as mediation. HUD attempts
to conciliate all Fair Housing Act complaints. In addition, it is the Department of Justice’s
policy to offer prospective defendants the opportunity to engage in pre-suit settlement
negotiations, except in the most unusual circumstances.
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