Section Review

Andover Housing Authority v. Shkolnik: The Duty To Make Reasonable Accommodations Under The Fair Housing Laws

Martin J. Rooney is a principal with the firm of Curley & Curley, P.C., in Boston. One major area of practice for him is the defense of housing discrimination matters for private and public landlords. He was counsel to the Authority in the Shkolnik case.
A landlord has a duty under the federal and state fair housing laws (the Federal Fair Housing Amendment Act, 42 U.S.C. § 3604, and the Massachusetts antidiscrimination statute, G.L. c. 151B, § 4(7)), in appropriate circumstances, to make reasonable accommodations to enable a handicapped tenant to use and enjoy an apartment as equally as a non-handicapped tenant. Determining when such a reasonable accommodation must be provided, and what constitutes a reasonable accommodation, is a challenging task.

In Andover Housing Authority v. Shkolnik, ____ Mass. ____, 820 N.E.2d 815 (2005), the Supreme Judicial Court, in a unanimous opinion written by Justice Spina, addressed these issues once again, and issued an opinion that firmly supported the actions of the public landlord and provided excellent guidance for future cases.

Both federal and state statutes prohibit discrimination in housing on the basis of disability or handicap. A handicapped individual is one who has a physical or mental impairment that substantially limits a major life activity, has a record of having such an impairment, or is regarded as having such an impairment even if he or she does not have that impairment. 42 U.S.C. § 3602(h), G.L. c. 151B, § 1(17). A landlord discriminates against a handicapped individual when, inter alia, it refuses to make “reasonable accommodations in rules, policies, practices, or services, when such accommodation may be necessary to afford [a handicapped] person equal opportunity to enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B); G.L. c. 151B, § 4(7A)(2).

In general terms, an accommodation is reasonable when it is one that does not impose an “undue hardship” on the landlord. An undue hardship is one that places an undue financial or administrative burden on the landlord or one that fundamentally alters the nature of the program. The determination of what is or is not a reasonable accommodation is very fact specific and is resolved on a case-by-case basis. Shkolnik, 820 N.E.2d at 822.

The tenants in Shkolnik were elderly Russian immigrants who lived in a state-funded public housing complex operated by the Andover Housing Authority (AHA). Beginning in late 1999 and continuing, the AHA began receiving numerous complaints concerning noise coming from the tenants’ apartment. After several warnings to the tenants concerning this conduct, and to the tenants’ son, the AHA held a private conference with tenants to try to resolve this problem. The tenants agreed to work to reduce the noise.

One of the tenants, Ginda Barskaya, had a history of medical problems, including dementia, which were worsening and which were not explicitly known to the AHA. The noise complaints continued despite the tenants’ assurances, leading the AHA to the serving of a 30-day notice to quit. Pursuant to state regulations, a resolution conference was then held at which time the tenants’ son presented medical documentation concerning Barskaya, including her pain, depression and dementia, and requesting the AHA withdraw the notice to quit. The tenants also continued denying that they were causing significant noise. The AHA declined to withdraw the notice, but did refer the tenants to several service providers to assist them with the medical issues. The tenants grieved this decision to a grievance panel (the process required by state regulations), which upheld the AHA decision to go forward with the eviction action. Summary process then was instituted. Tenants counterclaimed for violation of the federal and state fair housing laws for the alleged failure to make a reasonable accommodation. Despite the beginning of medical treatment by Barskaya, the AHA continued to receive numerous complaints about the tenants’ excessive noise.

The Northeast Housing Court heard the matter at a bench trial in 2003. The judge found that the excessive noise caused by the tenants was a violation of the lease and entitled the AHA to possession, although he stayed such possession for three additional months to give the tenants a last chance to reform their behavior. The court also dismissed the discrimination claims, finding the AHA did engage in an interactive process to determine the nature of the situation and what, if any, reasonable accommodations were available, and that the tenants’ proposed accommodation of withdrawing the eviction was not reasonable.

The SJC affirmed the decision of the Housing Court. 820 N.E.2d at 820. In doing so, the SJC clarified numerous issues of law and strongly supported the actions of the AHA.

First, the SJC clearly stated, under both federal and state law, that “A tenant who has alleged discrimination based upon a landlord’s failure reasonably to accommodate a handicap has the burden of proving that the proposed accommodation is reasonable.” 820 N.E.2d at 821. No prior case had clearly placed this burden on the tenant, and some federal case law placed the burden on the landlord to show the requested accommodation was not reasonable. Compare, Cobble Hill Apts. Co. v. McLaughlin, 1999 Mass.App.Div. 166 (1999) (placing burden on landlord).

Then the court addressed the process by which landlords and tenants must approach these requests. The SJC stressed that it is the tenant who has the burden to come forward and start the process. It is the request for accommodation that triggers the duty on the landlord to respond in the vast majority of cases. (The only exception to this rule might be where the nature of the disability is readily apparent on observation. 820 N.E.2d at 826. For example, a landlord who sees a tenant in a wheelchair struggling to enter an apartment may well be on notice that a reasonable accommodation — a ramp, a lowered threshold, etc. — may well be needed.)

The Court opined that placing the burden on the tenant to acknowledge a disability and to fully inform the landlord thereof and of the need for an accommodation puts the task on the person with the most knowledge; this relieves the landlord from guessing or from the imposition of a duty on a party with a questionable ability to investigate.

In Shkolnik, despite tenants’ lackluster compliance with this duty, the court found the AHA did nonetheless engage in the interactive process by its proactive attempts to speak with the tenants and their son, and to assist in arranging various services for the tenants. The court made clear that this interactive process is a two-way street, and is a process in which the tenant must fully participate. The court noted that this interactive process can easily be frustrated by the tenant taking different positions at different points in time.

Interestingly, the SJC grafted onto the reasonable accommodation in housing laws a requirement borrowed from the employment field — the concept of a “qualified handicapped person.” Although this requirement is not found in either the federal or state statute, the court’s opinion indicates that the tenant must prove that he or she is a qualified handicapped tenant: one who with a reasonable accommodation could comply with the lease. The reasonable accommodation must in fact allow him or her to comply with the lease and enjoy the tenancy. As the court noted, this is often the flip side of whether or not the accommodation is reasonable. “That is, if more than reasonable modifications are required of an institution in order to accommodate an individual, then that individual is not qualified for the program.” 820 N.E.2d at 824. This requirement also addresses situations were a tenant is not qualified because he has engaged in conduct, caused by the disability, which is “significantly inimical” to the landlord’s interests and in violation of the rules. See, e.g., Peabody Properties, Inc. v. Sherman, 418 Mass. 603 (1994) (drug sales).

Another way of looking at this issue is to ask whether or not the proposed accommodation is effective and efficient in addressing the disability. If not, the proposed accommodation will not allow the tenant to comply with the lease and enjoy the tenancy. Therefore, either the tenant is not otherwise qualified, or the accommodation is not reasonable. In Shkolnik, the tenants did not make any showing that, even if the eviction was stayed or withdrawn, they could comply with the lease and stop disturbing the neighbors.

Addressing the unique situation of landlords, public and private, the SJC then noted that landlords have an “equal responsibility” to all the other tenants they house. Under the covenant of quiet enjoyment, a landlord could be liable to these other tenants for failing to take action against a disabled tenant who is causing on-going disturbances or otherwise not complying with the lease as required of other tenants. 820 N.E.2d at 824, and n. 17. As the court held, a neighboring tenant’s rights “need not have been sacrificed ‘on the altar’ of reasonable accommodation.” 820 N.E.2d at 825. This is an important reminder that the process of reasonable accommodation is a balancing process, considering the rights of all other tenants, as well as the rights and needs of the handicapped tenant and the resources and nature of the landlord.

Importantly, the SJC also re-affirmed its position from the employment field that “indefinite requests for ‘more time’ to address a disabling condition” are not reasonable. Absent clear evidence that a delay in the eviction will actually enable the tenant to conform to the lease, the request for a delay is simply not reasonable. In the author’s experience, this type of open-ended request is common, especially with mental disabilities, and this language should clarify the landlord’s duty notably.

As the Court summed up, beyond the steps taken by the landlord at communication and attempts to facilitate treatment, “it is not reasonable to require [landlord] to diagnose its tenants’ medical problems, to ensure that they are receiving appropriate care, and to ignore the impact of lease-violating behavior on other residents in the name of making an accommodation.” Id.

The Shkolnik decision emphasizes the considerable burden on a tenant who is seeking a reasonable accommodation under the federal and state fair housing — handicap discrimination laws. The disabled tenant, in almost all instances, has the duty to begin the process by coming forward, identifying the disability and the accommodation sought. An interactive process follows. The tenant has the burden of proving that he is handicapped, that he is a qualified handicapped individual and that the proposed accommodation is reasonable and efficacious. Generalized requests for “more time” to address a disabling condition will often not be reasonable. The landlord must consider not only the rights of the disabled tenant, but also the rights of all other tenants when evaluating a request for accommodation.

Shkolnik is a notable decision clarifying the rights and duties of both tenants and landlords in the complex area of reasonable accommodations for disabilities.

©2014 Massachusetts Bar Association