Reasonable Accomodation for Caregivers
by Charles Brown

Apartment owner has the following problem: Owner's policy is that all tenants and adult occupants listed on the Lease must meet certain financial criteria. One tenant ("Mom") wanted her adult son ("Son") to move in with her. Son did not meet the financial criteria and his application was refused. Mom tells apartment owner that she (Mom) is disabled and needs her son to move in with her to help care for her - like a live-in aide. Owner wants to know if they have to allow Son to move in with Mom even though Son would not otherwise be allowed to live there.

Under the fair housing laws, landlords are required to make reasonable accommodations in their rules, policies, practices, or services when such accommodations may be necessary to afford disabled persons equal opportunity to use and enjoy a dwelling. "Reasonable" has been defined as feasible and practical. If the accommodation would cause the Landlord undue financial or administrative burdens then it is not reasonable. What is "necessary"? The tenant with a disability may have to show that the accommodation they are seeking will improve their life enough to justify the cost to the Landlord.

There must be some connection between the disability and the requested accommodation. Landlords may require proof that the tenant is disabled and proof that the requested accommodation would improve the disabled persons quality of life by reducing the effects of the disability enough to justify the cost to the landlord. The obligation to make reasonable accommodations applies only to people who are disabled. The requirement to make reasonable accommodations does not apply to the other "protected classes," therefore, a tenants' race, religion, sex or familial status does not entitle them to an accommodation of the Landlord's.

Here is what we did with Mom and Son and why: First, we verified with a health care provider that Mom was disabled and that she needed a live-in caregiver to afford her equal opportunity to use and enjoy her apartment. We just asked Mom to provide us with this information. Mistake. She gave us a letter from someone (not her doctor) that simply suggested that we let Mom have a live-in caregiver. The letter did not verify that Mom was disabled or that she needed a live-in aide to as a result of her disability. Not enough information.

The best way to get this information is to create your own request form and provide it to the tenant. This form should include the following:

a. Signature of the tenant authorizing the health care provider to release information to you.

b. Request for verification that the tenant has a disability where disability means "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."

c. Request that the health care provider verify that in their professional opinion the tenant needs a live-in caregiver to use and enjoy the apartment.

Once we were specific about what information was required, Mom obtained the needed verification. Even though Mom was old and feeble and appeared to be disabled we insisted on verification. Why? Not to be difficult, but because in the future, another resident who does not appear to be disabled may ask for an accommodation and if we make them provide verification, they may claim we are discriminating against them because we made them provide verification and we did not make Mom do the same. Stick with your policy that all people requesting accommodations based on a disability must provide verification that they are disabled and verification of the need for the accommodation to use and enjoy the apartment.

After Mom provided the verification we let Son move in but with a few conditions. Son had to sign the Lease. Son has to follow the Community Rules and Regulations and Lease terms just like everyone else. Son also had to agree in writing that if Mom moved or died before the end of the Lease term, Son would move out within 7 days. We also included language in the lease that said if Mom terminated or replaced Son as Mom's caregiver, Son would move out within 7 days of the termination or replacement. Remember, the only reason Son was living there was to serve as Mom's caregiver. If he is no longer serving as Mom's caregiver, he should move.

Finally, we documented Mom's file. Months from now if another person is managing this apartment community and wonders why Son was allowed to move in even though he did not meet the financial criteria, the file documents and notes will explain the whole story.

Bio:

Charles Brown is an attorney who invests in real estate in the Austin, Texas area. He is Board Certified in Residential and Commercial Real Estate Law by the Texas Board of Legal Specialization. He can be reached at 512-476-8942.