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The Federal Fair Housing Act: Sex Offenders, Juvenile Offenders and Drug Abusers, Part 3

June 18, 2011 | | Articles | No Comments

This is Part 3 of a 3 part series.  Part 1 of this blog series discussed the Fair Housing Act’s definition of disability and the requirements for landlords to make reasonable accommodations for disabled tenants. Part 2 addressed what is “reasonable” and when the request can be legally denied.

What about sex offenders, juvenile offenders, and drug abusers?

Sex offenders and juvenile offenders are not persons with disabilities as defined by the Fair Housing Act and are not entitled to accommodations.  Drug abusers are also not protected[1] but recovering drug users are.  Disabled persons that pose a direct threat to others or to the property of others are also not protected by the Act unless the threat can be eliminated or reduced by reasonable accommodation.  Most people would see this as a difficult place for landlords to be as he tries to stay within the legal limits of the Fair Housing Act and at the same time, protect other tenants from potential danger.

How can the landlord know if the disabled person poses a direct threat?

First of all, the landlord can not make the decision based on fear or speculation.  The landlord must make an individual determination based on “reliable objective evidence” such as current or past behavior or actions.

According to the HUD guidelines, the following factors must be considered when making the determination whether an individual with a disability poses a direct threat:  (1) the nature, duration, and severity of the risk of injury; (2) the probability that injury will occur; and (3) whether there are reasonable accommodations that will eliminate the direct threat.

In other words, even if a tenant has a few violent confrontations on the premises, he may have received intervening treatments or medication to eliminate the risk of injury and the landlord must take that into consideration when making a determination if the individual is protected by the Act.

The landlord must have reliable, objective evidence that a person with a disability poses a direct threat before excluding him from housing on that basis.  The landlord has some rights in these cases, however, including the right to require documentation of how the circumstances have changed to the point that the threat no longer exists.  The landlord may also require satisfactory assurances that the person will not pose a threat during the tenancy.

Remember, we are talking about disabled people who meet the statutory definition for person with a disability including a substantially limiting physical or mental impairment.  Nothing in the Act requires a landlord to rent to bad people.

Examples: An applicant for a rental unit indicates a sober-living facility as his previous residence.  The landlord, believing that recovering substance abusers are likely to be problematic and possibly violent, declines the applicant without further investigation.  This is illegal because of the lack of an individual assessment.  On the other hand, if the landlord, through the normal process of checking out the tenant, determined that this individual was indeed destructive and that was an ongoing issue, the rejection would most likely be legal.

A landlord wants to evict a tenant for a physical altercation on the premises.  The tenant indicated that he is receiving psychiatric care and the incident was due to failing to take his medication.  The landlord would be required to grant a reasonable accommodation, in this case the accommodation would be an exception to the clause in the lease prohibiting violence, if the tenant could provide satisfactory assurances that treatment is ongoing and that a system of periodic monitoring of medication is in place.  Absent that, the eviction can go forward.

Finally, a landlord is not required to make an accommodation unless it is requested, but it is important to respond in a timely fashion to any request for an accommodation and to act promptly and in good faith.  Failure to do so could result in bad feelings, unhappy tenants, or worse, a complaint filed with HUD.

It is strongly recommended that landlords consult an attorney familiar with Fair Housing issues when confronted with unusual circumstances.  Fair Housing laws are very important and all landlords, regardless of the number of units they own, need to be well versed in this area.

The full text of the 2004 guidance statement issued jointly by the Department of Justice and the Department of Urban Development can be downloaded at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf.

Integrity Plus Property Management is a San Diego based property management company specializing in single-family homes and multi-family properties for owners, investors, real estate brokers and financial institutions. To find out how we can help manage your San Diego property, check us out at http://integrityppm.com/about-us/.


[1] 42 U.S.C. § 3602(h)

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