FAIR HOUSING
For
PEOPLE WITH DISABILITIES
Protection and Advocacy System
1720 Louisiana Blvd. NE, Suite 204
Albuquerque, NM 87110
(505) 256-3100 (V/TDD)
800-432-4682 (V/TDD)
Revised: January 1994
Acknowledgements
Significant portions of this booklet were taken with permission from:
The Right of Persons with Disabilities to be Free from Discrimination in Housing Pursuant to the Federal Fair Housing Law and Other Federal Statutes, published by National Association of Protection and Advocacy Systems and prepared by the Disability Law Center of Boston, Mass., June 1990.
This manual included information drawn from publications of the Mental Health Law Project of Washington, D.C., the Massachusetts Legal Assistance Corporation, and the Center for Public Representation of Northampton, Massachusetts.
Rights of Tenants with Disabilities Under the Fair Housing Amendments Act of 1988, Mental Health Law Project, 1989.
Fair Housing: It's Your Right, U.S. Department of Housing and Urban Development, July 1990.
A selected bibliography of additional related publications is included in the back of the booklet.
The development and reproduction of this manual was one aspect of a sub-contract
in the total amount of $28,150 in 1991 from the National Association of
Protection and Advocacy Systems, using federal funds awarded from the Rehabilitation
Services Administration of the U.S. Department of Education. The viewpoints
expressed in this material do not necessarily reflect those of NAPAS or
the Department.
Every reasonable effort has been made to assure the accuracy of this manual.
However, errors may have been made in the process of editing, revising,
compiling, or reviewing. Further, this is an area of law and regulation
which continues to grow and change, and certain material may be superseded
by further developments or amendments. This manual should not be considered
"legal advice". Persons wishing to pursue these matters with respect
to individual cases should consult their own attorney, professional organization,
or the staff of the Protection and Advocacy System for further information.
TABLE OF CONTENTS
I. INTRODUCTION
II. FEDERAL FAIR HOUSING AMENDMENTS ACT OF 1988:
DISCRIMINATION PROHIBITED IN HOUSING
A. Introduction and Purpose
B. Housing Covered Under the 1988 Amendments
C. Persons Protected Against Discrimination
D. General Prohibitions
E. Questions Prior to Sale or Rental
F. Reasonable Accommodation
G. Modifications of Existing Housing
H. Design and Construction of New Housing
III. ENFORCEMENT PROVISIONS OF THE FAIR HOUSING ACT
A. Enforcement Through Federal Agencies
B. Private Enforcement Through the Courts
IV. SECTION 504 OF THE REHABILITATION ACT 1973: NON-
DISCRIMINATION IN FEDERALLY-ASSISTED HOUSING
A. Persons Protected Under Section 504
B. General Prohibition Against Discrimination
C. Reasonable Accommodation
D. New Construction or Substantial Alteration of Existing Housing
E. Enforcement
V. OTHER PROTECTIONS AGAINST HOUSING DISCRIMINATION
A. The Americans with Disabilities Act
B. The Architectural Barriers Act
C. The New Mexico Human Rights Act
D. Local Housing Ordinances
VI. THE RIGHT TO COMMUNITY LIVING: ZONING AND
OTHER LAND USE LAWS
A. Introduction
B. Relevant Provisions of the Fair Housing Act
VII. RESOURCES
VIII. BIBLIOGRAPHY
IX. APPENDIX
I. INTRODUCTION
This booklet has been written principally for persons with disabilities
and their advocates to summarize applicable federal laws regarding the rights
of persons with disabilities to be free from housing discrimination. It
describes mainly the Fair Housing Act and federal regulations of the Housing
and Urban Development Department (HUD), Section 504 of the Rehabilitation
Act and its HUD regulations, and a few other relevant laws.
Twenty-some years ago, after Dr. Martin Luther King's assassination, Congress passed Title VIII of the Civil Rights Act of 1968 (called the Fair Housing Act) in order to end discrimination in housing based on race, color, religion, sex or national origin. In 1988, the Fair Housing Amendments Act of 1988 was passed, which for the first time extended the protections afforded by Title VIII to persons with disabilities.
The 1988 Amendments, which went into effect on March 12, 1989 expanded the
rights of persons with disabilities to be free from discrimination in regard
to housing. The 1988 Amendments prohibit virtually every kind of housing
discrimination against persons with disabilities, and include detailed rules
regarding modification of premises, reasonable accommodation of policies
and practices, access standards for new construction and allowable questions
by landlords to prospective tenants.
Section 504 of the Rehabilitation Act, first enacted in 1973, also prohibits
housing discrimination, but it applies only where there is federal financial
assistance or a program conducted by the Federal Government, and is not
nearly as detailed in its discrimination protections. This law is also briefly
reviewed. Other federal and state laws affecting housing, and the special
case of group homes for people with disabilities, conclude this manual.
II. FEDERAL FAIR HOUSING AMENDMENTS ACT OF 1988: DISCRIMINATION PROHIBITED
IN HOUSING
A. Purpose of the Act
Congress intended the Fair Housing Amendments Act of 1988
to be a "clear pronouncement of a national commitment to end the
unnecessary exclusion of persons with handicaps from the American mainstream.
It repudiates the use of stereotypes and ignorance, and mandates that persons
with handicaps be considered as individuals. Generalized perceptions about
disabilities and unfounded speculations about threats to safety are specifically
rejected as grounds to justify exclusion."
Congress gave several examples of stereotypical discrimination, including
persons who use wheelchairs who have been denied the right to build simple
ramps, persons who have been perceived as posing some threat to property
and excluded on that basis, people with AIDS who had been evicted because
of a false belief that they pose a health risk to others, and people with
mental retardation who have been excluded because of stereotypes regarding
their capacity to live safely and independently. Congress concluded that
"all of these groups have experienced discrimination because of prejudice
and aversion - because they make non-handicapped people uncomfortable. [The
Act] clearly prohibits the use of stereotypes and prejudice to deny critically
needed housing to handicapped persons. The right to be free from housing
discrimination is essential to the goal of independent living."
B. Housing Covered Under the 1988 Amendments
The Fair Housing Act, as amended, applies to almost every kind of housing
which does not fall within a statutory exemption. There are two principal
exemptions:
1. owner-occupied housing for four or fewer families living independently
of each other is exempt, except for discriminatory advertising practices.
2. the rental or sale of a single-family house by an owner who does not
have an interest in more than three such houses, who has not sold a house
within the previous 24 months, who does not use a real estate agent or broker
to sell or rent the house, and who does not use a discriminatory advertisement,
is exempt from the Act. The exemption applies only to the owner and not
to any co-op or condominium association.
Except for these statutory exemptions, the prohibitions against housing
discrimination apply to any "dwelling". The term "dwelling"
is a technical term defined as "any building, structure or portion
thereof which is occupied as, or designed or intended for occupancy as,
a residence by one or more families, and any vacant land which is offered
for sale or lease for the construction or location thereon of any such building,
structure or portion thereof".
As further defined by HUD's federal regulations, dwelling units include
a single family home, apartment unit and other accommodations in which there
are shared bathroom or cooking facilities by occupants who may be unrelated
to each other. "Dwelling unit" explicitly includes residences
which are occupied by one or more related or unrelated persons such as a
dormitory, community residence for persons with disabilities or a shelter
for persons who are homeless.
C. Persons Protected Against Discrimination
1. Handicap
The 1988 Amendments to the Federal Fair Housing Act protect persons "because
of a handicap". In a manner nearly identical to Section 504 of the
federal Rehabilitation Act, the term "handicap" is defined to
mean a person who meets the following criteria:
(1) the person has a "physical or mental impairment which substantially
limits one or more major life activities," or
(2) the person has a record of such an impairment, or
(3) the person is regarded as having such impairment.
Persons who are currently using illegal drugs are not covered. Discrimination
is not only prohibited because of the handicap of the renter or buyer but
is also prohibited because of the handicap of the person living in or intending
to live in that dwelling, or because of the handicap of any person associated
with the buyer or renter or other person intending to live or is living
in that dwelling.
2. Exclusions from Coverage
The federal law and HUD regulations clearly will not protect someone
who would be a direct threat to the health or safety of others or who would
cause substantial damage to the property. Persons with mental disabilities
or who have a history of mental disability might be the most likely to be
discriminated against. The landlord or seller might take the position that
the person is dangerous to themselves and others.
In this case, the landlord would have to establish a clear connection between
the person's condition and the direct threat, such as a recent history of
violent action or current misconduct. The landlord cannot just assume that
a history of physical or mental illness or disability is proof that the
person will not be able to meet his or her obligations or pose a threat
of harm.
Persons with AIDS are similarly protected. In one of the earliest court
cases decided under the 1988 Amendments, the judge concluded that persons
infected with the AIDS virus "pose no risk of its transmission to the
community at large" and therefore they may not be excluded from protection
under the "direct threat" language.
An owner or landlord may also refuse to sell or rent to a person if this would result in "substantial physical damage to the property of others." However, this provision may not be construed to allow a landlord to exclude a person using a wheelchair because of effects of using that wheelchair upon the property. For example, the normal wear and tear to a dwelling unit that might be expected by an individual who uses a wheelchair, such as the nicking of door frames or walls, would not constitute "substantial" physical damage within the meaning of this term. In addition, the individual's tenancy has to be shown to cause substantial physical harm to significant pieces of property.
D. General Prohibitions
Once it has been determined that the particular housing is a "dwelling"
which is covered by the Fair Housing Act and that a person is "handicapped,"
a full range of protections apply. The law prohibits all forms of discrimination
in the sale or rental of a dwelling to the buyer or renter because of that
person's disability.
Discrimination is unlawful with respect to the terms, conditions or privileges
of any sale or rental of a dwelling, or in the provision of any services
or facilities in connection with the dwelling. Printing or publishing any
notice, statement or advertisement that indicates any preference, limitation
or discrimination because of disability is prohibited; "blockbusting"
practices focused on persons with disabilities are prohibited; discrimination
is prohibited regarding membership or participation in any multiple listing
service, real estate brokers' association or other similar service on the
basis of disability; and persons with disabilities are included within the
protections against discrimination in residential real estate transactions.
In addition, it is unlawful to "coerce, intimidate, threaten, or interfere
with any person" in regard to the exercise of any of these rights or
the enjoyment of a dwelling.
E. Questions Prior to Sale or Rental
An important part of the 1988 Amendments and HUD regulations are certain prohibitions against asking whether or not an applicant for an apartment or other dwelling has a disability or asking about the nature or severity of the handicap of such a person. A landlord may not ask a prospective or current tenant, subtenant, guest, invitee or any associate of a tenant whether he or she has a mental illness, cerebral palsy, mental retardation, cancer, epilepsy, AIDS or any other disability.
Further, a landlord may not ask a tenant or applicant any questions that would require the tenant to waive his right to confidentiality regarding his medical condition or history. A landlord is not entitled to see a prospective tenant's medical records.
Landlords may ask about the applicants' ability to meet tenancy requirements.
This means a landlord may ask whether a prospective tenant will be able
to pay the rent, whether he is willing to comply with the building's rules
and other questions relating directly to tenancy, providing he asks all
other applicants the same questions.
In addition, a landlord may also ask the following questions, as long
as he or she asks them of all applicants. First, if a landlord is providing
housing designed for and occupied by people with disabilities or with a
particular type of disability, he may ask whether the applicant qualifies
for a dwelling that is available only to people with disabilities or with
a particular type of disability. A landlord who provides this type of housing
may ask if an applicant qualifies for a priority available to people with
handicaps or with a particular type of handicap.
Second, a landlord may also ask an applicant these questions: (1) whether
the person is currently an illegal abuser or addict of a controlled substance;
(2) whether the person has been convicted of the illegal manufacture or
distribution of a controlled substance.
F. Reasonable Accommodation
The Fair Housing Act, as amended, requires "reasonable accommodation in all rules, policies, practices, or services, when such accommodation may be necessary to give a person with a disability an equal opportunity to use and enjoy a dwelling, including public and common use areas."
The HUD regulations do not clarify which accommodations are to be considered
"reasonable" and which would be "unreasonable," but
give several examples to illustrate what is intended. One example HUD uses
involves parking spaces, where a person with a mobility impairment is unable
to walk more than a short distance and therefore requests that a parking
space near his unit be reserved for him. HUD concludes that it would be
a violation of the reasonable accommodation requirements to refuse to make
the accommodation of the reserved parking place.
G. Modifications of Existing Housing
Many persons who have a physical impairment need a modification of the existing
premises in order to fully use a house or apartment. The 1988 Amendments
provide tenants with disabilities the right to make modifications for accessibility
purposes, but they may have to do so at their own expense: landlords
may choose to cover these costs, but the law does not require them
to do so. It is unlawful for the landlord to refuse to permit reasonable
modifications by the tenant. It seems clear that a person with a disability
must seek and obtain the permission from the landlord or owner to make the
modification.
However, there are a few limitations on tenant modifications. If "reasonable"
to do so, the landlord of rental housing may require that the tenant agree
to restore the interior of the premises, after the tenant is done living
there, to the condition that existed before the modification, except for
reasonable wear and tear. In doing so, the landlord may not increase the
customary security deposit but may under certain circumstances require that
the tenant pay into an interest bearing escrow account a reasonable amount
of money not to exceed the estimated cost of the restorations.
In addition, the landlord may require the renter to provide a "reasonable
description" of the proposed modification as well as "reasonable
assurances" that the work will be done in a workmanlike manner and
that any required building permits will be obtained.
By contrast, the reasonable accommodation requirements under Section 504
(discussed on page 13), may be interpreted to require that the owner of
the premises, if federally subsidized, provide certain modifications at
the owner's expense, if the modification would not impose an undue
hardship on the owner of the building. It may be useful to request that
a modification be paid for or be made by the landlord pursuant to Section
504, if it applies.
H. Design and Construction of New Housing
The most effective method for making the world fully accessible for persons with physical disabilities is to adopt certain design standards for new construction so that housing is built in a way that it can be fully used and enjoyed by all persons. However, a full range of accessibility features may not be needed or desired by persons who are not disabled. The approach until recently has often been to require only a small percentage of units in newly constructed housing be fully accessible to persons with disabilities.
The 1988 Amendments to the Fair Housing Act, however, introduce a relatively
new concept of "adaptable design" which can significantly expand
the housing market for persons with disabilities without imposing any hardship
on developers or inconvenience to tenants without disabilities. The Amendments
and HUD regulations require that all new multi-family dwellings consisting
of four or more dwelling units meet certain design standards so that the
dwelling can be later adapted for use by a person with a physical disability
without the necessity of any structural changes. The design standards apply
if the building was first occupied after March 13, 1991 or if the last building
permit or renewal was issued by a state, county or local government after
January 13, 1991. In such a multi-family building, all floors of the building
must comply if there is an elevator, and the ground floor of the building
must comply if there is no elevator.
Any building subject to these standards must have an accessible route leading
to the building and an accessible entrance; it must be designed so that
the public and common use areas are readily accessible to and usable by
persons with disabilities; all doors must be designed to allow passage into
and between rooms inside by persons using wheelchairs; and each individual
dwelling unit must contain the following features of adaptable design: (1)
an accessible route into and through the dwelling, (2) light switches, electrical
outlets, thermostats and other environmental controls in accessible locations,
(3) reinforcements in bathroom walls to allow later installation of grab
bars around the toilet, tub, etc., and (4) usable kitchens and bathrooms
such that an individual in a wheelchair can maneuver about the space.
In its regulations, however, HUD states that a multi-family building need
not be accessible if it is "impractical to do so because of the terrain
or unusual characteristics of the site". The burden of establishing
impracticality is on the person or persons who designed or constructed the
housing facility.
III. ENFORCEMENT PROVISIONS OF THE FAIR HOUSING AMENDMENTS ACT OF 1988
The Fair Housing Amendments Act of 1988, and HUD's regulations, provide
two primary remedies for alleged discriminatory housing practices. First,
you may file a complaint with the federal government (through HUD), and
let them take responsibility for investigating the complaint, resolving
the problem, and assuring compliance.
Second, the Act allows individuals with a disability to retain their own
attorney and file a lawsuit against the person, agency, or corporation which
is believed to have violated the Act.
A. Enforcement Through the Federal Government
1. How to File a Complaint
If you think your rights under the Act have been violated, you may file a complaint with the U.S. Department of Housing and Urban Development (HUD). This is best done by filing with them a Housing Discrimination Complaint Form (a sample is in the Appendix). You can also write HUD a letter, or call them on the HUD Hotline. You have one year after an alleged violation to file a complaint with HUD, but you should file it as soon as possible.
No matter which method you choose, you should provide the following information:
Your name and address
The name and address of the person your complaint is against (the respondent)
The address or other identification of the housing involved
A short description of the alleged violation (the event that caused you to believe your rights were violated)
The date(s) of the alleged violation
The Housing Discrimination Complaint Form, or a letter, should be mailed
to:
HUD Fair Housing and Equal Opportunity
1600 Throckmorton, P.O. Box 2905
Fort Worth, TX 76113-2905
or:
Office of Fair Housing and Equal Opportunity
U.S. Department of Housing and Urban Development, Room 5204
Washington, D.C. 20410-2000
If you wish, you may use the toll-free HUD Hotline number 1-800-669-9777.
There is also a toll-free TDD phone for persons with hearing impairment:
1-800-927-9275. HUD also can provide interpreters, tapes and braille materials,
and assistance in reading and completing forms.
2. What Happens When You File a Complaint?
HUD will notify you when it receives your complaint. Normally, HUD also will:
Notify the alleged violator of your complaint and permit that person to submit an answer
Investigate your complaint and determine whether there is reasonable cause to believe the Fair Housing Act has been violated
Notify you if it cannot complete an investigation within 100 days of receiving your complaint
HUD will try to reach an agreement with the person your complaint is against (the respondent). A conciliation agreement must protect both you and the public interest. If an agreement is signed, HUD will take no further action on your complaint. However, if HUD has reasonable cause to believe that a conciliation agreement is breached, HUD will recommend that the Attorney General file suit.
3. What If You Need Help Quickly?
If you need immediate help to stop a serious problem that is being caused by a Fair Housing Act violation, HUD may be able to assist you as soon as you file a complaint. HUD may authorize the Attorney General to go to court to seek temporary or preliminary relief, pending the outcome of your complaint, if:
Irreparable harm is likely to occur without HUD's intervention
There is substantial evidence that a violation of the Fair Housing Act occurred
Example: A builder agrees to sell a house but, after learning the
buyer is disabled, fails to keep the agreement. The buyer files a complaint
with HUD. HUD may authorize the Attorney General to go to court to prevent
a sale to any other buyer until HUD investigates the complaint.
4. What Happens After a Complaint Investigation?
If, after investigating your complaint, HUD finds reasonable cause to believe
that discrimination occurred, it will inform you. If your problem is not
resolved through a negotiated agreement, your case will be heard in an administrative
hearing within 120 days, unless you or the respondent want the case to be
heard in federal district court. Either way, there is no cost to you.
If your case goes to an administrative hearing, HUD attorneys will litigate the case on your behalf. You may intervene in the case and be represented by your own attorney if you wish. An Administrative Law Judge (ALJ) will consider evidence from you and the respondent. If the ALJ decides that discrimination occurred, the respondent can be ordered:
To compensate you for actual damages, including humiliation, pain and suffering.
To provide injunctive or other equitable relief, for example, to make the housing available to you.
To pay the federal government a civil penalty to vindicate the public interest. The maximum penalties are $10,000 for a first violation and $50,000 for a third violation within seven years.
To pay reasonable attorney's fees and costs.
If you or the respondent choose to have your case decided in federal district court, the Attorney General will file a suit and litigate it on your behalf. Like the ALJ, the District Court can order relief, and award actual damages, attorney's fees and costs. In addition, the court can award punitive damages.
5. Pattern or Practice Suit
The Attorney General may bring a "pattern or practice" suit independent of any individual claims by private persons. Such an action can be taken against someone who is frequently or systematically disregarding the law. The person discriminated against may decide to join in such a suit in order to have the advantage of government resources and expertise in proving his claim. However, one disadvantage is that such cases are often complex and can take a long time.
B. Private Enforcement Through the Courts
If you prefer, you may, at your own expense, retain an attorney and file
a lawsuit in federal district court or state district court against anyone
who has violated your rights under the Fair Housing Act. Such a lawsuit
must be filed within two years of an alleged violation. In some circumstances,
if you cannot afford an attorney, the court may appoint one for you. If
you have already filed a complaint with HUD, you may still bring a lawsuit,
as long as you have not signed a conciliation agreement and an administrative
law judge has not started a hearing. Otherwise, you must let the HUD process
come to a conclusion.
If you file a lawsuit and the judge rules that you were right and that the
Act was violated, the court may award actual and punitive damages, and attorney's
fees and costs.
Filing your own lawsuit gives you greater control of the enforcement process,
and does not rely on the judgment of federal employees. However, litigation
can be very time-consuming and is generally rather expensive. You should
consider which process is best for you.
IV. SECTION 504 OF THE REHABILITATION ACT 1973: NON-DISCRIMINATION IN FEDERALLY-ASSISTED
HOUSING
There is another federal law which, on a more limited basis, can be useful
in combatting discrimination in housing. Section 504 of the Rehabilitation
Act of 1973 was enacted into law on September 26, 1973 as the first federal
civil rights law requiring equal opportunity for Americans with disabilities.
Since Section 504 covers all federally funded activities, it applies to
certain housing programs or projects and in those cases can be used to protect
against housing discrimination. Section 504 as amended states that:
No otherwise qualified handicapped individual in the United States...shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or any program or activity conducted by an executive agency or by the United States Postal Service.
A. Persons Protected Under Section 504
In order to be covered by Section 504's protections with respect to housing, a person with a disability must show that (1) the housing program receives federal financial assistance or is an activity conducted by a federal agency, (2) the person is a "handicapped" individual under the Act, and (3) the person is "otherwise qualified" for the program.
1. Federal Financial Assistance
Section 504 applies only if there is federal financial assistance or if
the program or activity is conducted directly by a federal agency. Most
federal financial assistance for housing comes from HUD. The HUD Section
504 regulations describe federal financial assistance as any federal grant,
loan, contract or other arrangement, and may be made directly from HUD to
the recipient of federal funds or may be made indirectly through another
agency.
2. "Individual with handicaps"
In order to be protected from discrimination by Section 504 a person must
be an "individual with handicaps". This is defined within the
law and regulations to mean that a person has a physical or mental impairment
that substantially limits one or more major life activities, or has a record
of such an impairment, or is regarded as having such an impairment. "Major
life activities" is further defined as functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning and working. However, this does not include any individual who
is an alcoholic or drug abuser whose current use of alcohol or drugs prevents
the individual from participating in the program or activity in question,
or whose participation, by reason of such current alcohol or drug abuse,
would constitute a direct threat to property or safety of others.
3. "Otherwise Qualified"
The term "qualified" is defined with respect to housing as meeting the essential eligibility requirements for participation in or receipt of benefits from that program or activity. This includes, for instance, meeting low income guidelines if they apply to the housing program involved, or being able to meet the responsibilities expected of all residents of the program.
B. General Prohibition Against Discrimination
The HUD regulations prohibit any discrimination, exclusion or denial of
benefits based on a person's handicap. They also require that a housing
program: (1) provide equal opportunity to participate in, or benefit from,
the housing or service; (2) provide a housing or benefit which is as effective
as those given to others; (3) not provide different or separate housing
or benefits unless necessary to provide the handicapped person with housing
or benefits that are as effective as those provided to others; and (4) prohibit
discrimination because of the handicap of a person living in or intending
and eligible to live in the dwelling. The regulations make clear that in
administering a program or activity which receives federal funds, the recipient
must do so in the most integrated setting appropriate to the needs of the
qualified individuals with a disability.
Discriminatory policies, procedures, or eligibility guidelines are prohibited if they have the effect of excluding or limiting a person because of a disability, even where there may be no intent to do so.
C. Reasonable Accommodation
The HUD regulations require that certain accommodations be made in order to meet the particular needs of a person with a disability and allow the person an equal opportunity to participate in the housing program. Unlike the Fair Housing Act, these accommodations must be provided by the housing program, not the tenant.
However, an accommodation is not required if the accommodation would result
in a "fundamental alteration in the nature of its program" or
would result in "undue financial and administrative burdens".
The regulations do not clarify where to draw the line between a required
"reasonable accommodation" and an accommodation that would result
in an undue hardship. Presumably, one must evaluate the overall size of
the recipient's program, the type of the program, and the nature and the
cost of the accommodation needed.
The HUD regulations do discuss certain required accommodations. Auxiliary
aids may be required where necessary to provide an individual with disabilities
an equal opportunity to participate in and enjoy the benefits of a particular
program, but individually prescribed devices such as readers for personal
use or study or other devices of a personal nature are not required. Where
the landlord communicates by telephone with applicants or tenants, he or
she must use telecommunication devices (TDD) for persons who are hearing-impaired,
or other equally effective communications such as a relay service. A recipient
of federal funds must also modify its housing policies and procedures, if
necessary, to ensure that these policies and practices do not discriminate
on the basis of handicap.
The final area of accommodation addressed in these regulations is a modification of the structure in order to allow a person with a disability to have ready access to and to fully enjoy the premises. The regulations adopt the concept of "program accessibility" which means that when viewed in its entirety the program receiving federal funds should be "readily accessible and usable by individuals with handicaps." This does not necessarily require a recipient to make each of its facilities accessible but rather requires that when looked at in its entirety, persons with disabilities have an equal opportunity to use the premises. Among the methods for complying with this requirement would be reassignment of services to accessible buildings, assignment of aides to beneficiaries, provisions of housing or related services at alternative accessible sites, alteration of existing facilities and construction of new facilities, or any other methods that result in making its program or activities readily accessible to and usable by individuals with disabilities.
However, if the recipient is able to establish that any of these accommodations would result in a fundamental alteration in the nature of the program or activity or would result in undue financial and administrative burdens, the recipient can avoid making the accommodation according to HUD regulations.
D. New Construction or Substantial Alteration of Existing Housing
The HUD regulations under Section 504 require that new multi-family housing projects, including public housing projects, be designed and constructed so as to be readily accessible to and usable by individuals with handicaps. Unfortunately, however,this requirement does not mean that each of the dwelling units must actually be accessible to and usable by a person with a disability. The HUD regulations only require that a minimum of 5% of the total dwelling unit(s) or at least one unit in a multi-family housing project, whichever is greater, must be made accessible for persons with mobility impairments. An additional 2% of the units (but not less than one unit) must be accessible for persons with hearing or vision impairment. If a major project is being substantially remodeled (15 or more units and where the cost of alterations is 75% or more of the replacement cost of the housing), then the same accessibility requirements as for new construction will apply.
With respect to the accessible dwelling units, the HUD regulations provide
that to the maximum extent practical and subject to reasonable health and
safety requirements, the accessible units must be distributed throughout
projects and sites and be available in a sufficient range of sizes and features
so that a qualified individual with handicaps has a choice of living arrangements
which, as a whole, is comparable to that of other persons eligible for housing
assistance under the same program.
E. Enforcement of Section 504
Like the Fair Housing Act, there are two enforcement procedures under Section 504. First, you can file a complaint with HUD, or whichever federal agency provides funding to the housing provider. The information you should provide is similar to that for a Fair Housing Complaint. In addition, you should identify the source of the federal funds, if you know this. Your complaint will be investigated. If HUD finds your complaint substantiated, they will attempt to resolve the problem through negotiation. If this fails, HUD has the authority to stop any further federal funding of the project involved.
As an alternative, you may retain your own attorney and file a lawsuit against
the housing provider. If the judge determines that there has been a violation
of Section 504 and that you have won, you may obtain a court order requiring
compliance with the law, and be awarded attorney's fees as well.
V. OTHER PROTECTIONS AGAINST HOUSING DISCRIMINATION
A. The Americans with Disabilities Act
The ADA was passed by Congress in July, 1990, and provides a broad range of legal protections for persons with disabilities. For purposes of this manual, there are two major provisions of the ADA which may offer further protections against housing discrimination.
First, the ADA covers all services provided by state, city, county, or other governmental organizations and prohibits discrimination against persons with disabilities. The specific requirements of the law are very similar to Section 504, but the ADA applies regardless of whether there is any federal funding involved. Consequently any housing project, service,or rent-subsidy program which is sponsored by a state, county, city, or other government organization is covered by the ADA. These provisions of the ADA went into effect in January, 1992.
Second, the ADA covers hotels, motels, inns, or other similar businesses which provide temporary housing, as well as real estate companies. Again, the specific requirements of the ADA are very similar to the provisions of Section 504. These provisions of the ADA also went into effect in January, 1992.
In either of these two types of cases, complaints may be made to the U.S. Department of Justice for investigation and enforcement action. The DOJ has the authority to force compliance. Complaints to DOJ can be sent to the following address:
Office on the ADA
Civil Rights Division
US Department of Justice
Post Office Box 66118
Washington, D.C. 20035-6118
As an alternative, private lawsuits may be filed under the ADA as well.
If you win, you may obtain a court order requiring compliance, and you may
be entitled to attorney's fees and costs.
B. The Architectural Barriers Act
The Architectural Barriers Act of 1968 requires that most buildings which are constructed with federal funds be accessible to persons with disabilities, according to access standards issued by the federal government. The law extends to buildings leased by federal agencies or constructed using grants or loans from federal agencies. HUD has issued regulations governing buildings constructed with HUD funds; other federal agencies have taken similar action.
The Architectural Barriers Act will apply to a variety of low-income housing projects, housing built with Community Development Block Grants, group residences for the elderly and persons with disabilities under Section 202, and a variety of other residential structures.
Any interested person who believes that a building constructed with federal
funds after 1968 does not meet the federal access standards which applied
at the time of construction may
file a complaint with the Architectural and Transportation Barriers Compliance
Board at the following address:
U.S. Architectural and Transportation
Barriers Compliance Board
1111 18th Street NW, Suite 501
Washington, DC 20036-3894
Telephone: 1-800-USA-ABLE (voice or TDD)
C. The New Mexico Human Rights Act
The New Mexico Human Rights Act (NMSA 1978, Sec. 28-1-1 to 28-1-18) lists a variety of unlawful discriminatory practices related to the sale, rental, assignment or lease of housing accommodations and real property as well as obtaining credit for purchase, construction or repair of any housing accommodation on the basis of a person's physical or mental handicap. Any person claiming to have been discriminated against may file a written complaint with the New Mexico Human Rights Division.
The complaint must contain:
The name and address of the person making the complaint
The name and address of the person accused of housing discrimination
The date, place and description of the alleged unlawful discriminatory practice
The basis on which the complaint is being filed
The signature of the person making the complaint
The complaint must be delivered to the Human Rights Division either by personal
delivery or by mail within 180 days after the alleged act was committed.
The Human Rights Division is located at:
1st Floor, Aspen Plaza
1596 Pacheco Street
Santa Fe, NM 87502
Phone: (505) 827-6838
The Director will determine whether the Division has jurisdiction, investigate and issue a determination unless a conciliation agreement has been signed. If there is probable cause, the Human Rights Commission will issue a complaint against the respondent and require him or her to answer the allegations at a hearing before the Commission. The person making the complaint must be present at the hearing.
If the Commission finds that the respondent is guilty of discriminating, it shall issue its findings. As part of its order, the Commission may require the respondent to pay actual damages to the complainant and to pay reasonable attorney's fees and to take such affirmative action as the Commission considers necessary.
If a respondent does not comply with an order of the commission, the attorney general or district attorney may request enforcement of the order by a district court. If the respondent feels wronged by the commission's order, he or she may file an appeal in a district court. If the original complaint is dismissed by the Division, the person with the disability may also appeal this decision into the state district court.
D. Local Housing Ordinances
In addition to the Human Rights Act, New Mexico residents may also have protections under local city or county ordinances. For example, the City of Albuquerque has a city ordinance which prohibits discrimination in housing, and has an office to which complaints can be sent for investigation. These protections and remedies may vary from place to place and should be considered either as a substitute for, or in addition to, any other complaint process you may choose to use.
VI. THE RIGHT TO COMMUNITY LIVING: ZONING AND OTHER LAND USE LAWS.
A. Introduction
The previous sections of this manual have focused primarily on the rights of individuals to be protected from discrimination. This final chapter briefly reviews the ways in which these legal protections extend to group living situations for people with disabilities, particularly group homes.
One of the most common methods used by states, cities, towns, and neighborhoods
to limit the opportunity for people with disabilities to live in the community
is through the use of restrictive zoning ordinances and other burdensome
land use laws. Such laws are usually attempts to control or discourage the
development and operation of community residential programs such as group
homes. This chapter considers the impact of the Fair Housing Amendments
on zoning and other land use restrictions.
B. Relevant Provisions of the Fair Housing Act
The Fair Housing Amendments Act added language to Section 804 of the Act making it illegal to discriminate in the sale or rental, or to otherwise make unavailable or deny a dwelling to any buyer or renter because of a handicap of -
(1) that buyer or renter,
(2) a person living in or intending to live in that dwelling after it is so sold, rented or made available; or
(3) any person associated with that buyer or renter.
The Act also prohibits discrimination in "the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling" because of a handicap. Finally, the Act makes clear that discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices and services, when such accommodations are necessary to afford such persons equal opportunity to use and enjoy a dwelling."
Although these sections of the Act do not include any specific language
focusing on exclusionary zoning practices, the legislative history of the
1988 Amendments makes it clear that Congress intended that these statutory
prohibitions against discrimination make illegal any zoning practices that
result in or would have the effect of excluding people with disabilities.
Under the 1988 Amendments, local governments may not require a special or
conditional use permit of a community residence if the locality does not
require the same of other dwellings of similar size, such as those occupied
by families. In addition, if land use regulations such as zoning ordinances
prevent people with disabilities from fully enjoying housing opportunities,
the U.S. Attorney General may bring an action in federal court to address
this issue of general public importance.
1. Restrictive Covenants
There are some covenants (or restrictions) on land which would restrict
that land from use as a group home for people with disabilities. Such covenants
are most likely to exist in sub-divisions or developments. They may specifically
restrict use as a group home, may restrict the size of structures, may forbid
certain modifications to existing structures or may require occupancy only
by a single family unit. Each of these kinds of restrictions could directly
exclude group homes or have that effect.
Such a covenant would be illegal under the Fair Housing Amendments if it would "discourage or obstruct choices in a community, neighborhood or development." The regulations specifically identify such covenants as a discriminatory housing practice. Covenants which may appear neutral -- such as those which limit residency to single family use -- are also illegal at least as to people with disabilities if the effect is to prevent unrelated persons with disabilities from living together, if such a living arrangement is what is needed for the person to live in the community.
2. Allowing Neighbors to Decide
One of the most unfortunate aspects of establishing group homes is the occasional organized community opposition. It is even more unfortunate when an agency bends to the will and prejudices of a vocal minority and withdraws or modifies its plans to provide a home for its clients. Despite the claims of some neighbors and government officials, neighbors generally do not have a right to know who is moving in nearby or any right to control who lives where.
Expressions of discomfort, concern, or even fear by neighbors are irrelevant
to the right of people with disabilities to choose where they live. Neighbors
have no more right to advance notice that a person or persons with disabilities
will move into a home than they would if members of a racial minority or
a religious group were to occupy the home.
The 1988 Amendments to the Fair Housing Act provides a useful tool for combatting
organized community resistance. The HUD regulations clearly prohibit interference,
coercion or intimidation with the exercise or enjoyment of a right under
the Act. Prohibited conduct includes:
(1) coercing a person "to deny or limit the benefits provided that
person...in connection with a residential real estate-related transaction"
because of handicap,
(2) "threatening, intimidating or interfering with persons in their enjoyment of a dwelling" because of handicap, and
(3) "intimidating or threatening any person because that person is engaging in activities designed to make other persons aware of, or encouraging such other persons to exercise rights granted or protected" by the regulations.
Enforcement of these prohibitions provides a useful way to combat some forms
of community opposition.
3. Restrictions on the Number of Occupants or their Relationship
Some cities have rules prohibiting more than a certain number of unrelated people from living in a household. Such rules appear neutral. However, if an apparently neutral restriction has the effect of limiting the opportunity for people with disabilities to obtain housing (by sharing a home or having a live-in attendant), they will be unlawful under the Amendments.
RESOURCES
The following list of organizations may be able to provide information and
assistance related to housing for people with disabilities. Protection and
Advocacy System does not endorse any specific organizations or programs
they may administer.
Albuquerque Housing Authority 1840 University Blvd. SE Albuquerque, NM 87106 (505) 764-3920 (V) (505) 764-3994 (TDD)
Services: Administers several home owner and rental housing programs for elderly, disabled and low-income residents in Albuquerque.
Albuquerque Human Rights Office City/County Government Center PO Box 1293 Albuquerque, NM 87103 (505) 768-2980 (V) (505) 768-2982 (TDD)
Services: Accepts and tests complaints of discrimination related to any housing accommodation, commercial space or real property, in the City of Albuquerque.
Alliance for the Mentally Ill - New Mexico PO Box 3086 Albuquerque, NM 87190-3086 (505) 254-0643 1-800-953-6745 (V/TDD)
Services: Provides advocacy and education on behalf of persons with mental illness as well as Managed Care. They also offer family/ consumer support groups and offer an ombudsman consumer advocacy program.
Association of Retarded Citizens of Albuquerque 1515 Fourth Street NW Albuquerque, NM 87102 (505) 247-0321 (V/TDD)
Services: Provides several housing arrangements and support services in the Albuquerque area for persons with developmental disabilities as well as supportive housing and employment.
Bernalillo County Housing Department 620 Lomas Blvd. NW Albuquerque, NM 87102 |
(505) 764-6800 Services: Administers several housing programs for elderly, disabled and low income residents of the county outside the Albuquerque city limits. Greater Albuquerque Habitat for Humanity 3501 Campus Blvd. NE Albuquerque, NM 87106 (505) 265-0057 (V) Services: A local chapter of the national organization that builds and renovates houses for low-income families . Independent Living Resource Center 4401-B Lomas Blvd. NE Albuquerque, NM 87110 (505) 266-5022 (V/TDD) Services: Provides independent living skills training and housing/accessibility. They also Conduct housing surveys and referrals. Assists consumers and/or families in locating wheelchair accessible housing, and provides information on modification of existing housing as well as other independent living services. Landlord/Tenant Hotline 115B Harvard SE Albuquerque, NM 87106 (505) 256-9442 (V) (800) 348-9370 Services: Provides information, assistance, mediation, and referrals related to housing problems. National Fair Housing Alliance 1212 New York Ave., Suite 525 Washington, DC 20005 (202) 898-1661 (V) (202) 898-2735 (TDD) Services: NFHA develops programs and research related to fair housing and conducts educational programs concerning fair housing. New Mexico Department of Labor |
Human Rights Division 1596 Pacheco Street Santa Fe, NM 87505 (505) 827-6838 (V) Services: Carries out the provisions of the New Mexico Human Rights Act. Accepts and investigates claims of unlawful discrimination in housing, employment, credit, and public accommodations. NM Mortgage Finance Authority (NFA) 344 4th Street SW Albuquerque, NM 87102 (505) 843-6880 (800) 444-6880 Services: Administers several federal and state housing programs for elderly, disabled and low-income citizens. Paralyzed Veterans of America - Zia Chapter 833 Gibson Blvd. SE Albuquerque, NM 87102 (505) 247-4381 (V) Services: Provides assistance in obtaining accessible housing and public accommodations as well as referrals for spinal cord injuries. Protection and Advocacy System 1720 Louisiana Blvd. NE, Suite 204 Albuquerque, NM 87110 (505) 256-3100 (V/TTD) Statewide toll-free 1-800-432-4682 Services: Provides information and referral as well as advocacy in fair housing issues for people with disabilities. St. Martin's Hospitality Center PO Box 25265 Albuquerque, NM 87125 (505) 843-9405 (V/TDD) Services: Provides housing for up to 24 months for the chronically mentally ill homeless population as well as a multi-purpose day shelter. Town of Bernalillo Housing Authority 857 Calle Los Mayores PO Box 70 |
Bernalillo, NM 87004 (505) 867-2792 (V) Services: Administers several housing programs for elderly, disabled and low-income residents of Sandoval county as well as providing information on public housing (Section 8). Transitional Living Services 4020 Central Ave. SE Albuquerque, NM 87108 (505) 268-5295 (V) Services: Provides a continuum of housing and care from fully supervised group homes to semi-independent single resident occupancies for adult mentally ill people. U.S. Department of Housing and Urban Development (HUD) 625 Truman NE Albuquerque, NM 87110-6443 (505) 262-6463 (V/TDD) Fair Housing Complaint Hotline (Toll-free nation-wide) 1-800-669-9777 (V) National Hotline 1-800-927-9275 (TDD) 1-800-498-9371 (Fort Worth, TX) Services: Provides information and referral about virtually all aspects of fair housing and federally subsidized housing programs. Does not take applications for subsidized housing. |
BIBLIOGRAPHY
This selected bibliography consists of articles, books and pamphlets related to housing issues for people with disabilities. Most are available at little or no cost from the publishers.
Berger, Deborah. "Helping the Homeless...One by One." Parade Magazine.
21 July 1991,
pp. 8-11.
Black, Brian D. "Reality Turns Fair Housing Amendments Act Sour."
EPVA Action.
June 1991, pp. 9-11.
Braccidifarro, Gail. "Federal Grants Help Non-Profits Serve Homeless." The New York Times, Section Y, p. 27.
Duke, Annette. "Let's Cut the CHAS." Design for Independent Living: Housing Accessibility Institute, 1991.
Goldman, Charles D. Disability Rights Guide, second edition, Lincoln, Nebr: Media Publishing, 1991.
Governor's Committee on Concerns of the Handicapped. Independence through Accessibility: A Manual for Handicapped Access Design in New Mexico, September 1990.
Selected Statutory Rights of Persons with Disabilities, Undated. For further information, a more complete listing of statutes affecting persons with disabilities, or to make suggestions on needed legislation, contact the Governor's Committee on Concerns of the Handicapped, Lamy Building, Room 117, 491 Old Santa Fe Trail, Santa Fe, NM 87503. Phone: (505) 827-6465.
Gramlich, Ed. CHAS, Comprehensive Housing Affordability Strategy: A Citizen's Action Guide. Washington, D.C.: Center for Community Change, June 1991.
Man, Martha. "Barriers-Free Living." Albuquerque Journal, 27 August 1989, p. 41.
Mental Health Law Project. The Impact of the Fair Housing Amendments on Land-Use Regulations Affecting People with Disabilities, 16 February 1989.
Index of Resource Materials on Fair Housing for People with Disabilities. Washington, D.C., November 1990.
New Mexico Department of Labor, Human Rights Division. Rules and Regulations for the Implementation of the Human Rights Act, 11 November 1988.
New Mexico Public Interest Education Fund. Renter's Guide, Sixth Edition, July 1991.
New Mexico Public Interest Research Group. Metro Court Guide: The People's Handbook to Court Procedure, July 1990.
New Mexico State Housing Authority. Rehabilitation Program, HUD-Section & Housing Assistance, HUD-Rental Rehabilitation, Low-Income Housing Tax Credit, HUD-Fair Housing Initiative Program, Undated.
New Mexico Statutes Annotated 1989. Chapter 28, Human Rights, may be cited as the "Human Rights Act."
Peoples Center for Housing Change. Housing Adaptability Guidelines. Topanga, Calif., 1980.
U.S. Commission on Civil Rights. An Annotated Bibliography on Selected Fair Housing Issues. Clearinghouse Publication 90, October 1986.
U.S. Department of Housing and Urban Development. Final Fair Housing Accessibility Guidelines, 6 March 1991.
Implementation of the Fair Housing Amendments Act of 1988 (24 CFR Part 14). 23 January 1989.
U.S. Department of Veterans Affairs. Questions and Answers on Specially Adapted Housing and Special Housing Adaptations for Veterans, March 1991.
U.S. General Services Administration, et al. Uniform Federal Accessibility Standards, 1 April 1988.
Weber, David R. and Gail Ann Schlacter. Financial Aid for the Disabled and Their Families 1990-1991.
World Institute on Disability. A Brief Summary of Disability Legislation in the United States of America. Oakland: Research and Training Center on Policy in Independent Living, 30 April 1991.