Young lawyer practice assisting
disabled clients in Housing Court
An interesting challenge, not only for a young attorney but also
any advocate who practices housing law, is handling cases involving
tenants with disabilities. Several laws prohibit housing
discrimination based on a person's disability, most notably Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, Title VIII
of the Federal Civil Rights Act of 1968, codified at 42 U.S.C. §
301 (The Fair Housing Act), and the Massachusetts Housing Bill of
Rights for People with Disabilities, G.L. c. 151B. Under these
laws, a person with a disability is defined as an individual who
has a physical or mental impairment that substantially limits one
or more major life activities, has a record of such impairment, or
is regarded as having such impairment. A person with a disability
under this definition is entitled to a reasonable accommodation to
assist in accessing proper housing or in preserving a tenancy. A
landlord's obligation to provide a reasonable accommodation to an
individual with a disability exists at all stages of the tenancy,
and a refusal to make such an accommodation is discrimination under
the law.
The process of reaching an accommodation is an interactive one,
with the obligation to accommodate a disabled tenant triggered not
by a request for a specific accommodation, but rather by the
landlord's knowledge of the disability. There are, therefore, no
magic words that are required to initiate the process of
formulating a reasonable accommodation. Consequently, merely
informing the landlord of the existence of a qualifying disability
and putting the landlord on notice that the tenant requires a
change in the landlord's policies or procedures qualifies as a
request reasonable accommodation. Boston Housing Authority v.
Bridgewaters, 452 Mass. 833, 847 (2009).
Although a formal request is not a requirement, it is, as a
practical matter, the most effective way for an advocate to
initiate the accommodation process. The landlord then has a duty to
either approve the accommodation or deny the request if the
accommodation is either unreasonable or fails to eliminate a direct
threat that the tenant poses to the health and safety of others. In
denying a proposed accommodation, the landlord must articulate the
specific grounds on which the denial is based.
Reasonable accommodations are discerned and resolved on a
case-by-case basis. An accommodation is "reasonable" if it will not
fundamentally alter the nature of a service, program, or activity,
or impose an undue financial or administrative burden on the
landlord. In determining whether an accommodation imposes an undue
administrative or financial burden, courts examine the overall
costs and benefits of the requested modification. If the costs are
reasonable in light of the anticipated benefits and the burdens
imposed are not excessive, the refusal to provide an accommodation
constitutes discrimination. Further, where a requested
accommodation is unreasonable, a landlord must consider other
reasonable options that would enable the individual to achieve an
equal opportunity prior to issuing a decision of termination or
denial. See City Wide Assocs. v. Penfield, 409 Mass. 140
(1991).
A key provision of the law that must be noted and understood by
advocates for either the landlord or the tenant, is that
discrimination protections do not apply to any individual 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". See, 42 U.S.C. §
3604(f)(9) 24 C.F.R. § 100.202 [Title VIII]; 24 C.F.R. § 8.3
[Section 504]. A person however, cannot be excluded on the basis of
threat unless it can be shown that the person poses a direct threat
based on objective evidence rather than assumptions, subjective
fears, or speculations. In Bridgewaters, the court held
that, "before a federally assisted public housing authority … may
lawfully evict a disabled tenant who requests a reasonable
accommodation as posing a threat to others, it must either
demonstrate the failure of an accommodation instituted at the
request of the tenant, or demonstrate that no reasonable
accommodation will acceptably minimize the risk the tenant poses to
other residents."452 Mass. at 842.
Knowing the legal skills of requesting a reasonable
accommodation in a housing case can be a useful tool for a young
attorney who is representing either a landlord or a tenant. Both
sides need to be proactive when attempting to accommodate the needs
of a tenant with a disability. If a reasonable accommodation can be
made to afford the tenant an equal opportunity to use and enjoy the
dwelling, the accommodation should be made in order to allow the
tenant the full benefits of the tenancy.
Michael J. Moloney was admitted to
practice in Massachusetts, Connecticut and in the United States
District Court, District of Massachusetts. He is a graduate of
Roger Williams University School of Law and Sacred Heart
University. A native of Worcester, Moloney is the Worcester County
Director for the Massachusetts Bar Association Young Lawyers
Division. He practices law as an AmeriCorps Attorney with the
Justice Center of Southeast Massachusetts, a subsidiary of South
Coastal Counties Legal Services, Inc. and handles cases in
Brockton, Fall River and New Bedford.