Americans with Disabilities Act

The 1988 amendment to the Fair Housing Law, made persons with disabilities a protected class. In 1990, the Americans With Disabilities Act, generally referred to as ADA, required all companies doing business with the public to make their place of business, and the services being offered, accessible to persons with disabilities as defined by the Act. It also requires that housing providers follow policies and procedures which include persons with disabilities.

Who is Covered

• Hearing or vision impaired
• Physically disabled
• Mental illness or retardation
• AIDS or HIV infection
• Epilepsy
• Cerebral Palsy
• Use of a wheelchair or walker
• Use of a personal care attendant
• Use of a service animal
• Persons who have a record of a disability or who are currently under treatment for same or who are regarded as such
• Alcoholics, in treatment or not
• Prior drug users who have completed a rehab program
• Persons using prescription drugs under a physician's direction

Who is Not Covered

• Current illegal users of controlled substances
• Transvestites

Notes on Companion Animals

Companion animals differ from service animals, like guide dogs, with which we are familiar. Companion animals have been prescribed by a doctor as part of the patient's therapy. Therefore persons qualifying for coverage under ADA have a right to keep them regardless of an owner's refusal to allow pets in the home or unit. All of the following apply;

• owner may not prohibit without unusual circumstances, i.e. owners own allergies and imminent return
• tenant must request and show documentation
• no extra deposit may be required

Rentals and Reasonable Modification

Reasonable accommodation refers to the right of the disabled to modify rental housing in order to accommodate their disability. Owners and landlords must do so under the following guidelines;

• Must be requested by the tenant
• The modifications must be practical & feasible
• All costs are paid by the tenant
• Changes which will not be acceptable to future tenants must be returned to their original state at the tenant's expense upon expiration of the lease or termination of tenancy.
• Owner has the right to approve the plans, the contractor, and the quality of the work
• Owner has the right to require money to be placed in escrow to ensure compliance and any interest would accrue to the tenant. This escrow is not a deposit and may not be accessed by the owner for any purpose other than to return the property to its original condition.

Owners and Compliance

• Owners may not ask about a disability
• Owners may ask for financial, credit and tenant history as they would any other applicant

Handicapped Accessible

The standards for a home to be marketed as Handicapped Accessible are as follows:

• All doors which allow passage into and within all premises must be sufficiently wide to accommodate persons who use wheelchairs (39")
• There must be an accessible route into and throughout the dwelling
• Light switches, electrical outlet, thermostats, and other environmental controls must be placed in accessible locations
• Reinforcements must be installed in bathrooms to allow for later installation of grab bars, and
• Kitchens and bathrooms must allow persons in wheelchairs to maneuver about the space

Occupancy

The maximum number of persons who will be allowed to occupy a dwelling is usually calculated one of two ways; by the Federal guideline of 2 persons per bedroom plus 1, which is referred to as the Keating Memorandum or by the BOCA standard.

BOCA National Property Maintenance Code/1993 (PM-405.3 & Table PM 405.5)

"Every dwelling unit must contain a minimum gross floor area not less than 150 square feet for the first occupant and 100 square feet for each additional occupant. Every room occupied for sleeping purposes by one occupant shall contain at least 70 square feet of floor area, and every room occupied for sleeping purposes by more than one person shall contain at least 50 square feet of floor area for each occupant"

"In determining floor areas of rooms occupied for sleeping purposes, the term 'floor area' shall not include floor area of halls or walkways, bathrooms, stairs, kitchens, laundry areas, closet or other storage areas, but may include dining room areas where consistent with other provisions of the BOCA Code." -- HUD General Counsel, Nelson Diaz, July 12, 1995

Keating Memorandum, HUD General Counsel, March 20, 1991

... Specifically, the Department believes that an occupancy policy of two persons per bedroom, as a general rule, is reasonable under the Fair Housing Act. ...

Thus, in reviewing occupancy cases, HUD will consider the size and number of bedrooms and other special circumstances .... Size of bedrooms and unit, ... Age of Children, ... Configuration of unit, ...Other physical limitations of housing, ... State and local law...

An occupancy policy which limits the number of children per unit is less likely to be reasonable than one which limits the number of people per unit. ...