Reasonable Modification and Accomodation
by Charles Brown

Fair housing laws prohibit discrimination against people based on race, color, religion, national origin, sex, familial status or handicap (the "protected classes"). There are two types of unlawful discrimination that apply only to people who are handicapped : (1) Failure to make a reasonable accommodation; and (2) Failure to make reasonable modifications.

Reasonable Modifications. You are required to permit a person with a disability to make modifications to your existing premises if:

1. The existing premises are occupied or are to be occupied by a person who is handicapped.
2. The person offers to pay for the modification.
3. The modifications are necessary to afford the person who is handicapped full enjoyment of the property.

Where reasonable, you may condition your permission on the tenant's agreement to restore the interior of the premises to the condition that existed before the modification (less reasonable wear and tear). The "premises" means both the interior and exterior of the building; therefore, common areas may be modified as well as the dwelling unit. But, the restoration requirement only applies to the interior of the dwelling unit. The landlord may require the tenant to pay into an interest bearing escrow account a reasonable amount of money to pay for the restoration when the tenant moves out. If the modification will not interfere with the landlord's or the next tenant's use and enjoyment of the premises, you may not condition the permission for the modification on the restoration requirement. The landlord may require the tenant to provide a reasonable description of the proposed modifications and reasonable assurances that the work will be done in a workmanlike manner with required building permits. I recommend that the landlord do the construction for required modifications because you have more assurance that the modifications are done in a good and workmanlike manner.

Federal regulations provide the following examples of reasonable modifications:

Example (1): A tenant with a handicap asks his or her landlord for permission to install grab bars in the bathroom at his or her own expense. It is necessary to reinforce the walls with blocking between studs in order to affix the grab bars. It is unlawful for the landlord to refuse to permit the tenant, at the tenant's own expense, from making the modifications necessary to add the grab bars. However, the landlord may condition permission for the modification on the tenant agreeing to restore the bathroom to the condition that existed before the modification, reasonable wear and tear excepted. It would be reasonable for the landlord to require the tenant to remove the grab bars at the end of the tenancy. The landlord may also reasonably require that the wall to which the grab bars are to be attached be repaired and restored to its original condition, reasonable wear and tear excepted. However, it would be unreasonable for the landlord to require the tenant to remove the blocking, since the reinforced walls will not interfere in any way with the landlord's or the next tenant's use and enjoyment of the premises and may be needed by some future tenant.

Example (2): An applicant for rental housing has a child who uses a wheelchair. The bathroom door in the dwelling unit is too narrow to permit the wheelchair to pass. The applicant asks the landlord for permission to widen the doorway at the applicant's own expense. It is unlawful for the landlord to refuse to permit the applicant to make the modification. Further, the landlord may not, in usual circumstances, condition permission for the modification on the applicant paying for the doorway to be narrowed at the end of the lease because a wider doorway will not interfere with the landlord's or the next tenant's use and enjoyment of the premises. Reasonable Accommodations. 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. Unlike reasonable modifications, the law does not allow for the landlord to charge the disabled tenant for reasonable accommodations.

Federal regulations provide the following examples of reasonable accommodations:

Example (1): A blind applicant for rental housing wants to live in a dwelling unit with a seeing eye dog. The building has a no pets policy. It is a violation of the law for the owner or manager of the apartment complex to refuse to permit the applicant to live in the apartment with a seeing eye dog because, without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling.

Example (2): Progress Gardens is a 300 unit apartment complex with 450 parking spaces which are available to tenants and guests of Progress Gardens on a first come first served basis. John applies for housing in Progress Gardens. John is mobility impaired and is unable to walk more than a short distance and therefore requests that a parking space near his unit be reserved for him so he will not have to walk very far to get to his apartment. It is a violation of the law for the owner or manager of Progress Gardens to refuse to make this accommodation. Without a reserved space, John might be unable to live in Progress Gardens at all or, when he has to park in a space far from his unit, might have great difficulty getting from his car to his apartment unit. The accommodation therefore is necessary to afford John an equal opportunity to use and enjoy a dwelling. The accommodation is reasonable because it is feasible and practical under the circumstances.

The terms reasonable and necessary are key words used in the laws requiring reasonable modification and accommodation. "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. As a landlord you may require proof that the tenant is disabled. Then you should determine whether 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 obligations to make reasonable modifications and accommodations apply only to people who are disabled. The requirement to make reasonable accommodations and reasonable modifications does not apply to the other protected classes. Landlords do not have to make reasonable modifications or reasonable accommodations for people unless they are disabled. A tenants' race, religion, sex or familial status does not entitle them to a modification of the premises or an accommodation of your policies.

The landlord's decision about whether a modification or an accommodation is required is not always easy to make. If you are asked by a tenant to make a modification or accommodation and you do not think such request is reasonable, you should ask your attorney to try to find to find a written court opinion based on similar facts to your situation. Many court opinions have been written to provide guidance about whether an accommodation or modification was required in specific situations. The decision to make accommodations and modifications are really a case by case test as each case is different. You conscience and common sense can be your guide in deciding what would be reasonable.

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.