Fair Housing for People with Mental Health Disabilities

1. Fair Housing for People with Mental Health Disabilities Fair Housing Laws and Litigation Conference 2014 San Diego, California

2. Take Away Points

3. Fair Housing Amendments Act • Requires housing providers to make Reasonable Accommodations • 42 U.S.C. § 3604(f)(3)(B) • Required housing providers to allow Reasonable Modifications • 42 U.S.C. § 3604(f)(3)(A)

4. A Reasonable Accommodation is a change in a rule, policy, practice, or service that may be necessary to allow a person with a disability the equal opportunity to use and enjoy a dwelling.

5. Examples • Adjustment of the rent due date to accommodate receipt of public benefits. • Allowing someone to transfer to a quieter unit because noise aggravates his or her disability. • Waiver of “no pet” policy to accommodate psychiatric service dogs or comfort animals.

6. A Reasonable Modification is a physical change to a dwelling or common area. Note: who pays depends on type of housing Note: restoration not always required

7. Examples • Ramps • Flashing Doorbells • Grab Bars • Soundproofing

8. Must be Necessaryand Reasonable. Requires a “Nexus”.

9. What is Reasonable? Courts analyze two different ways: • Balancing of Hardships Approach • Strict Burden Shifting Approach (includes 9th Cir.)

10. Balancing of Hardships Approach • Also known as the cost-benefit approach. • Accommodation-related costs imposed on the housing provider are weighed against the benefits the accommodation would afford the tenant.

11. Burden Shifting Approach • Party requesting accommodation bears the initial burden of showing that the request is “reasonable.” • Once this showing is made, the burden shifts to the housing provider to disprove reasonableness. • Housing provider is required to grant the requested accommodation unless he or she can prove that the requested accommodation is not reasonable.

12. Establishing Reasonableness Is the requested accommodation: • Reasonable on its face? • Ordinarily or in the run of cases? • Plausible?

13. Disputing Reasonableness Undue financial or administrative burden • Factors: cost, benefit to tenant, financial resources of the provider, availability of equally effective less expensive alternative. • Note: Some cost or financial burden on provider is to be expected. Fundamental alteration • i.e. can’t alter the essential nature of the operations.

14. What is “Necessary”? • Does the provision of the accommodation promote equal opportunity for the individual to use/enjoy his or her housing? • Will the accommodation enhance the individual’ quality of life by ameliorating the effects of his or her disability?

15. Nexus Required There must be a connection between the disability, the requested change and the ability of the individual with disabilities to use and/or enjoy his or her housing.

16. NEXUS • Tenant’s disability is exacerbated by loud noises. • Tenant requests transfer to a quieter unit and the ability to install soundproofing. NO NEXUS • Tenant’s disability is exacerbated by loud noises. • Tenant requests accessible parking space.

17. “Interactive Process” When a housing provider refuses a requested accommodation or modification because it is not reasonable, the provider should discuss with the requester whether there are alternatives that would effectively address the requester's disability-related needs. Individuals with disabilities should be willing to engage in an interactive process regarding the need for accommodation, particularly when it is not obvious.

18. Common Issues Hoarding Non-compliance with Lease Terms Service & Support Animals Economic Accommodations Land Use and Zoning

19. Hoarding that violates health and safety codes is a lease violation. Hoarding at lease violation level indicates disability.

20. Hoarding Disorder • Persistent difficulty discarding or parting with possessions, regardless of their actual value due to a perceived need to save the items and to distress associated with discarding them. • Accumulation of possessions that congest and clutter active living areas and substantially compromises their intended use. • Clinically significant distress or impairment in social, occupational, or other important areas of functioning (including maintaining a safe environment for self and others). • The hoarding is not attributable to another medical condition (e.g., brain injury), or better explained by the symptoms of another mental disorder (Obsessive-Compulsive Disorder).

21. Accommodating People who Hoard • Extra time to allow a tenant to clean out his or her apartment in order to pass a housing or subsidy inspection; • Extra time to allow a tenant to access and utilize services to address the hoarding behavior and underlying causes; • A payment plan that permits a hoarder to catch up on unpaid rent when the hoarder used rent money for his or her hoarding activities.

22. Douglas v. Kriegsfeld Corp. 884 A.2d 1109 (D.C. 2005) • Landlord attempted to evict tenant whose mental disability interfered with her ability to clean and upkeep her unit. • The tenant sought an accommodation, specifically a stay of eviction so that she could utilize social service agencies that would assist her in cleaning her apartment.  • The Court ruled that she was entitled to such a reasonable accommodation.

23. Accommodations Plan • Requires both short and long term plan. • Imminent threats must be dealt with asap. • Must address unpaid rent, damage to property or other related issues • Accommodation may not be required if repeated violations, prior accommodations unsuccessful.

24. Keep it in Perspective! People are allowed to live in their homes and apartments and to fill those homes and apartments full of belongings that “others” might consider garbage so long as… • Leases are followed • City ordinances are followed Focus should be only on solving legitimate health and safety issues rather than attempting to achieve ideal housekeeping habits

25. Minimum Safety Guidelines General Guidelines include: • Working toilet and sink • Adequate walking paths in rooms used on a regular basis • Safe walkway (flooring uncluttered) • No infestations of insects and/or rodents • No excessive accumulation of garbage • Absence of fire hazards – no combustibles near radiators or stoves, no blocked exits, no overloading of outlets

26. Non-Compliance with Lease Terms

27. Disability-Related Lease Violations • Disability-related behaviors or needs may create a nuisance (e.g. yelling at manager; night terrors) or otherwise breach lease terms. • Initiate accommodation request and begin interactive process immediately upon notice of adverse housing action (i.e. notice to cure or eviction notice).

28. Request for Accommodation Must show: • Link between noncompliance & tenant's disability. • Accommodation/modification will allow the tenant to obtain compliance and remain compliant with the lease (i.e. necessary). • Accommodation/modification is reasonable. If the accommodation/modification is denied – it provides an affirmative defense to eviction

29. “Direct Threat” Evictions The Fair Housing Amendments Act does not protect a 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.” 42 U.S.C. 3604(f)(9)

30. Direct Threat Analysis is objective, not subjective. Consider: • Nature of risk • Duration of risk • Severity of risk of injury • Probability injury will occur. Housing provider must determine whether there is an accommodation that could eliminate or mitigate the direct threat.

31. Boston Hous. Auth. v. Bridgewaters898 N.E.2d 848 (Mass. Sup. Jud. Ct. 2009) Eviction of public housing tenant who had physically assaulted another tenant overturned due to public housing authority’s failure to "make an individualized assessment.” In the case, there was evidence that post-incident treatment had eliminated the problem behavior for the tenant, who had mental disabilities.

32. City Wide Associates v. Penfield 409 Mass. 140 (1991) Landlord attempted to evict tenant whose mental disability caused her to engage in property damage. The tenant requested that she be accommodated in order to show that intervention of outreach and counseling programs would minimize the risk of engaging in further property damage. The court ruled in favor of the tenant.

33. Psychiatric Service Animals & Comfort Animals The Fair Housing Amendments Act protects the right of people with disabilities to reside with service animals and emotional support animals. The Fair Housing Amendments Act provides broader rights than the Americans with Disabilities Act.

34. Service Animal, Comfort Animal or Pet? • Service Animal - An animal that is necessary to afford an individual an equal opportunity to use and enjoy a dwelling or to participate in a housing service or program. • Emotional Support Animal - Any dog or other common domestic animal that helps an individual with psychiatric disabilities manage or alleviate the symptoms of those disabilities, by providing therapeutic nurture, comfort and support. • Pet – A domesticated animal kept for pleasure or companionship.

35. Requirements? • No restrictions about who may train the animal. • No requirement that the animal be specially trained. • Special tags, equipment, "certification" or special identification cannot be required. • No species or size limitations.

36. Economic Accommodations An economic accommodation is a change in a rule, policy, practice, or service that is necessary to overcome disability-caused economic barriers to tenancy. Giebeler v. M&B Associates, 343 F.3d 1143 (9th Cir. 2003) McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004)

37. Giebeler v. M & B Associates343 F.3d 1143 (9th Cir. 2003) Case involving a tenant with disabilities who requested a co-signer as an accommodation. Exception to no co-signer policy was necessary: to afford Giebeler equal opportunity to use and enjoy a dwelling. Court held: Accommodation need not stem directly from the disability but may “adjust for the practical impact of a disability”

38. McGary v. City of Portland386 F.3d 1259, 1263 (9th Cir. 2004) Tenant requested more time to clean up his yard in order to discharge a nuisance citation. City rejected request, asserting that tenant could pay the City to clean his yard, cleaned the yard & then billed him for the clean up. District court argued no discrimination because the City’s imposition of a financial burden (paying for yard cleaning) did not deny tenant use of his home or prohibit him from living there. 9th Cir. reversed, recognizing that exceptions to neutral policies may be mandated where a tenant’s disability‑related need for policy modification is essentially financial in nature.

39. Examples • Waiving income requirements • Allowing co-signers • Altering rent due date • Overlooking lack of credit history • Security deposit – paying over time. • Allowing tenant to break lease early

40. Land Use & Zoning Discrimination in the area of land use and zoning can take many forms including: • Restrictive definitions of “family” which prohibit the siting of group homes for people with disabilities in residential neighborhoods • City of Santa Barbara v. Adamson, 27 Cal.3d 123 (1980) • City of Edwards v. Oxford House, Inc., 514 U.S. 725 (1995)

41. Land Use & Zoning • Restrictive spacing requirements which limit the number of group homes in a given area. • Oconomowac Res. Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002)

42. Land Use & Zoning • Illegal use of the Conditional Use Permitting process to deny housing opportunities for people with disabilities. • The ARC v. State of N.J., 950 F.Supp. 637 (D. N.J. 1996)

43. Land Use & Zoning • Failure to provide reasonable accommodations to group housing for people with disabilities. • City of Edwards v. Oxford House, Inc., 514 U.S. 725 (1995)

44. Questions?

45. Resources • HUD/DOJ Joint Statement on Reasonable Accommodations: http://www.hud.gov/offices/fheo/library/huddojstatement.pdf • HUD/DOJ Joint Statement on Reasonable Modifications: http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf • HUD/DOJ Joint Statement on Group Homes, Land Use and the Fair Housing Act: http://www.justice.gov/crt/about/hce/final8_1.php • Bazelon Center for Mental Health Law: www.bazelon.org (publications) • National Housing Law Project - www.nhlp.org • U.S. Department of Housing and Urban Development http://www.hud.gov

46. Michelle Uzeta, Esq. Center for Disability Access & Housing Access Project 9845 Erma Road, Suite 300 San Diego, CA 92131 (858) 375-7385, Ext. 665 michelleu@potterhandy.com Law Office of Michelle Uzeta 710 S. Myrtle Ave., #306 Monrovia, CA 91016 michelle@uzetalaw.com http://uzetalaw.com Admitted in California and Hawai'i