Note: Advice given herein does not constitute the formation of an attorney-client relationship. Further, any communication with the author may not necessarily be secure or confidential, and initiating contact with the attorney does not create an attorney–client relationship.
5th in a multi-part series…What is a Property Manager to do?
By: Mitzi Hall, The Hill Law Firm
Caught in a dilemma
When a tenant is mentally ill, landlords and property managers may find themselves caught in a dilemma. On one hand, they have a duty to protect the interests and safety of all of their tenants and staff. However, mentally ill tenants have equally important rights. As individuals with a chronic disability, they’re protected under the Fair Housing Act.
In order to protect everyone’s best interests and stay in compliance with the Fair Housing Act, all housing providers should be aware of the following:
1. You cannot discriminate against mentally ill applicants in the application process.
This means that if you find out a perspective tenant is seeing a psychiatrist, taking medication, or otherwise has a history of mental illness you cannot use this information as a basis for denying housing. This includes your own observations and opinions of the applicant. Mental illness can manifest itself in many ways, so be aware that it while it may be human nature to judge others based on appearance and mannerisms, these may be an outward reflection of an internal disability and should not be used in making application decisions.
2. You cannot ask about the nature or severity of their illness.
Just. Don’t. This may be one of the single most common violations of the Fair Housing Act made by housing providers. I have even seen housing providers request medical records! You simply do not have a right to that information. Keep conversation limited to compliance with the lease terms and the accommodation requested. Nothing else.
3. While you cannot evict a tenant for being mentally ill, mentally ill tenants must still adhere to their lease terms to the best of their ability.
You always have the right to address missed rent payments, property damage, or dangerous behaviors should these issues arise.
However, there are cases where a mentally ill tenant violated their lease and evictions were blocked by the court until the tenant could gain access to support services or medical care to help him or her to comply with the lease in the future. Such was the case in Cobble Hill Apartments v. McLaughlin, 1999 Mass. App. Div. 166 (Mass. Dist. Ct. App. 1999).
Bottom line: If the lease violations are a result of a tenant’s disability and a treatment plan would help them become compliant, housing providers should work with the tenant to help them avoid losing their housing.
4.You should be prepared to offer a reasonable accommodation to help mentally ill tenants keep or obtain their housing.
- Enlisting the help of social services and other local organizations and programs that address issues such as hoarding (a recognized mental illness).
- Allowing a tenant to relocate to another unit if her mental illness is exacerbated by a noisy neighbor.
- Assisting a prospective tenant in filling out a rental application.
5. Reasonable accommodations should be practical.
They should not create undue financial or administrative burden.
6. The tenant must request the reasonable accommodation.
You are not expected to be a mind reader or know if/when a tenant needs an accommodation. It has to be requested. Keep in mind that the words “reasonable accommodation” do not have to be used. Simply expressing the need is enough. For example, a mentally ill tenant may say “the noise upstairs is unbearable, can I move?”
7. The request need not be in writing or on a specific form.
While many housing providers have specific forms that corporate tells them to use for a reasonable accommodation request, you cannot require that those forms be used or even that the request be made in writing.
8. Housing providers can request documentation before granting the request.
You can ask for documents that verify that the tenant meets the legal definition of disabled for the purposes of the Fair Housing Act and that establish a link between the disability and the requested accommodation. Such documentation can come in the form of a letter from a healthcare provider, therapist, social worker, or other professional who is familiar with both the tenant’s disability and the need for the accommodation. If you’re not a lawyer and you feel this is getting too legal, please feel free to contact me to discuss the specifics of your situation.
While this seems to be in conflict with the prohibition of inquiring into the nature and extent of a tenant’s disability, the Joint Statement of the Department of Housing and Urban Development and the Department of Justice – Reasonable Accommodations Under the Fair Housing Act that was published in May of 2004 clarifies that:
“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 accommodation, 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 accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.”
9. Housing Providers are never obligated (nor should they!) disregard the safety and well-being of other tenants in order to grant a reasonable accommodation.
42 U.S.C Section 3604 (f)(9) states: “Nothing in this subsection requires that a dwelling be made available to any tenant 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.”
However, it is not enough to just prove a direct threat to others exists or did exist. Housing providers should be prepared to present evidence in court that no reasonable accommodation would acceptably reduce or eliminate the risk to others.
Have Questions or Just Want to Know More?
You’re welcome to contact the author anytime: Mitzi Hall firstname.lastname@example.org 615-815-1758