Federal law prohibits housing providers from discriminating based on race, color, national origin, religion, sex, familial status, or disability.
Pop quiz: Of the seven protected classes above, which one do you think has the highest number of discrimination complaints? It may surprise you that disability complaints are the number one discrimination complaint filed.
This month, REDBOOK Blues examines a confusing but essential aspect of disability discrimination: accommodation versus modification. Per usual, this article provides industry best practices for operational issues that arise from accommodation and modification.
REDBOOK Blues does not provide legal advice. If you need legal advice, contact one of FWAA’s member attorneys (https://www.aatcnet.org/legal-services-program).
The TAA REDBOOK contains numerous fair housing resources, including videos, forms, articles, and statutes. For more in-depth fair housing information, go to: https://www.taaredbookonline.org/resident-life-and-management-issues/fair-housing/fair-housing-at-a-glance.
Following is a summary of the operational issues regarding accommodation and modification:
- What is a Disability?
- Some disabilities are obvious (blindness, hearing loss, mobility, etc.); however, many disabilities are not easily apparent. Federal law defines a disability (handicap) as “a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment; or being regarded as having such an impairment.”
- What is a reasonable modification?
- A reasonable modification is a structural change to a premise or common area.
- What is a reasonable accommodation?
- A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service.
- Modification and accommodation are not mutually exclusive. Both a reasonable modification and a reasonable accommodation may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common-use spaces.
- Closer Look at reasonable modification?
- By law, FWAA members are required to allow persons with disabilities to make reasonable modifications to the premises to accommodate their needs. The modifications could be for the resident, occupant, or guests.
- Consider the Following when a Modification is Requested
- You can negotiate with residents about the requested modification.
- You can require the resident to pay for the modification.
- You can require the resident to pay to restore the unit to its original condition upon move-out.
- Be sure to use a third-party (insured and boned) contractor for all modifications.
- Practice Tip: You cannot require a resident to restore a modification to a common area. Also, visual smoke alarms for deaf and hard-of-hearing residents are an accommodation, not a modification, under Texas law. Therefore, you cannot require the deaf or hard-of-hearing residents to pay for them.
- Accommodation Basics
- You must make reasonable changes to the lease, community rules, community policies, practices, and services.
- Accommodation does not involve physical changes to the property.
- You cannot charge residents for accommodation. Accommodation provides residents, occupants, and guests an equal opportunity to use and enjoy their dwelling units.
- Practice Tip: Federal law requires FWAA members to make reasonable accommodations for Emotional Support Animals.
FWAA members are encouraged to always adhere to fair housing laws, rules, and regulations regarding accommodation and modification. Comply with fair housing not just because it is legally required but because it is the right thing to do!
April Royal, Birchstone Residential, is FWAA’s 2024 Treasurer and Government Affairs Committee Chair. For more information, contact Perry Pillow at ppillow@aatcnet.org
