FAIR HOUSING LAWS
In 1973, Section 504 of the Rehabilitation Act bridged the gap between disability and civil rights law. Drawing on language from Title VI of the Civil Rights Act of 1964, Section 504 prohibits discrimination towards qualified individuals with disabilities by recipients of federal funds.
THE FAIR HOUSING ACT AMENDMENTS OF 1988
The Fair Housing Act Amendments of 1988 prohibited discrimination against people with disabilities in the private housing market. Congress had three broad purposes related to people with disabilities in passing the 1988 Amendments to the Fair Housing Act:
A. To end the segregation that has been a characteristic of much of the housing available to people with disabilities;
B. To give people with disabilities wider opportunities to choose where they want to live; and
C. To ensure that reasonable accommodations are made available that respond flexibly to the individual needs of people with disabilities both to search for housing, and enjoy the full use of the housing and any associated facilities or services.
Enforcement rights were added to provide government representation when an investigation finds a violation. Punitive damages are allowed without a cap, and civil penalties can be awarded in an administrative hearing.
CONNECTICUT STATUTORY HOUSING PROTECTIONS
A. Connecticut Fair Housing Laws
The Connecticut Fair Housing Laws are codified as Connecticut General Statutes Sections 46a-64b. In general, Connecticut provides the same protections as Federal Fair Housing Act, with some additional provisions. Under the federal law, owner-occupied housing with four or less units is exempt, but under the Connecticut statutes, the exemption applies to a two-unit owner-occupied building.
B. Source of Income Discrimination Prohibited
The Connecticut Fair Housing Act includes a specific provision that prohibits discrimination based on lawful source of income (Section 814c(7).
Applicants who qualified to receive Section 8 housing assistance from the federal government were refused apartments because (1) they did not meet the landlord’s standard minimum income requirements and (2) the landlord insisted on the terms of its own standard lease, which deviated from the federal requirements governing Section 8 leases. Although the defendant contended that requiring a landlord to accept the standard Section 8 lease would alter the voluntary nature of the federal Section 8 program, the court found nothing in the federal statute that prohibited a state from mandating participation. Commission on Human Rights and Opportunities v. Sullivan Associates, 251 Conn. 924, 742 A.2d 364 (Conn.1999).
Failure to accept a Security Deposit Guarantee Voucher can also be considered source of income discrimination.
C. Just Cause Eviction: an Individual Who Is Elderly or Disabled Cannot Be Evicted Without Just Cause
Connecticut statutes (Sec. 47a-23c) prohibit the eviction of elders and persons with physical disabilities without just cause, such a failure to pay rent, except in limited situations. It can be argued that this also applies to persons with psychiatric disabilities under th State Constitution.
The court found insufficient grounds under a state statute to evict a tenant with a neurological disorder and legal blindness. The neurological disorder caused the tenant to fall frequently, which created noise and physical damage to the apartment. However, the conduct did not materially affect the health and safety of other tenants, the physical damage to the apartment did not materially affect the condition of the premises, and the physical damage and noise were not material breaches of the lease. Waterbury Housing Authority v. Lebel
D. Protection of Personal Property
State statute (Sec. 47a-42) allows a landlord/property manager to enforce a judgment by having personal property or possessions that remain in the premises removed by a State Marshal and set out on the adjacent sidewalk, street, or highway.
However, before such removal, the State Marshal must notify the chief executive officer of the city or town twenty-four hours in advance, as well make reasonable efforts to locate and notify the tenant. If the tenant does not remove the property, the city or town is required to remove and store the property at the expense of the tenant, and may have the property sold if it is not paid for within fifteen days of the eviction.
WHO DOES THE FHA PROTECT?
Persons with a Disability
Both the ADA and the FHA both define “disability” using the same three pronged definition (except FHA uses the term “handicap”):
A. The mental impairment must substantially limit one or more major life activities:
- • Working, thinking, communicating, and perceiving. In addition, a substantial limitation occurs when a person is generally unable to function, as is the case of someone who is severely depressed or catatonic.
- • The regulation defining mental impairment refers broadly to “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities”. Case law and legislative history also clearly indicate that alcoholism, but not on-the-job drinking or working while alcohol impaired, is a covered disability.
- • The determination of whether someone has a disability or not is not automatically based diagnosis, but rather on the effect of that impairment on the life of the individual. This is determined on a case by case basis.
- • The U.S. Supreme Court has ruled that mitigating measures, such as medications and corrective devices, must be considered to determine whether an individual has a disability. Sutton v. United Airlines. However, mitigating measures may themselves cause side effects that impair with major life activities.
The second and third prongs protect individuals who have a record of impairment or are regarded as having an impairment. This covers people who:
B. had a psychiatric disability and a record of that disability is the basis of discrimination, or
C. erroneously presumed to have a psychiatric disability and that incorrect presumption is the basis of discrimination.
These two prongs are intended to protect people who may be victimized by myths, fears, and stereotypes about certain mental or physical conditions. As the U.S. Supreme Court has noted, erroneous assumptions and other inappropriate reactions to a disability may be as “handicapping” as the actual functional limitations of any given impairment.
Exceptions To The Definition of Disability
The definition of disability specifically excludes individuals who:
A. currently using illegal, controlled substances;
B. convicted for illegal manufacture or distribution of a controlled substance;
C. have been direct threat to the health or safety of others, based upon current and recent behavior of overt act;
NOTE: This exception does not apply when one is a direct threat to himself/herself. An individual who engages in self-harm is not a direct threat to the health and safety of others and therefore, the Fair Housing Act protects them from discrimination. Example: Housing Authority evicting tenant who engaged in self-harm on two occasions.
D. would cause substantial physical damage to the property of others (there must be recent objective evidence of such behavior).
FOCUSING ON THE FAIR HOUSING ACT
Fair Housing Principles
In some respects, the protections of the Fair Housing Act provide a one important practical mechanism to help realize the community integration mandate of the ADA. Their fundamental goals are the same.
- Equality: People with disabilities should have an equal opportunity to live where they want, and not be subjected to rules or requirements that are different from those applied to people without disabilities.
- Integration People with disabilities are entitled to live in communities with their neighbors. Integration does not just mean physical presence in a neighborhood, but participation in community services and activities.
- Choice People with disabilities are entitled to choose where they want to live.
- Individuality Housing providers must respect the unique needs and circumstance of individuals with disabilities and offer reasonable accommodations to meet these needs when requested.
- • Owner-occupied building with 4 or fewer units. Connecticut Law exempts only owner-occupied building with 2 units.
- • Single-family home for sale or rent by owner
- • Religious entities
- • Private clubs
- Example: 1) A landlord refuses to provide a rental application or rent an apartment, stating, “I am not taking any more of your clients” or “My quota for disabled individuals is full.”
- 2) A landlord/property manager refuses to renew the lease of an individual who has met all tenant responsibilities during the tenancy.
- * Engaging in conduct which makes dwelling unavailable or denies dwellings
- * Representing to a person that a dwelling is not available when it is available
- * Failing to provide or denying maintenance or repairs
- * Denying any person access to membership in, or participation in, or other benefit of any multiple listing service or any other housing related service
- * Restricting, by word or deed, the housing choices of an individual and perpetuating segregated housing patterns
- * if the person is to live in the unit
- * the landlord may reasonably condition approval on the renter’s agreeing to restore the interior of the unit to the premodification condition, reasonable wear and tear excepted. In common areas, the modification does not have to be removed when the tenant moves out. The Fair Housing Act puts the cost of reasonable modifications on the tenant, but under Section 504, the landlord bears the expense of federal funded units.
- • inquire into the nature or severity of a tenant’s disability, except to:
- * Determine if a person is eligible for a priority
- * Determine if a person is qualified for a dwelling that is only available to people with disabilities make the usual non-discriminatory inquiries about qualifications that are asked of all others
- * Ask if someone is a current illegal drug user or if the person has been convicted of the illegal manufacture or distribution of a controlled substance
- * Demand an additional security deposit because of a tenant’s disability
- * Segregate tenants with disabilities in a certain area of a housing complex because of their disabilities—1st floor only is discriminatory
- * Deny access to recreation facilities, parking privileges or any other privileges and services available to other residents.
- Example: The following statements may be evidence of intentional discrimination:
- • “I don’t want someone with a mental disability living in my building.”
- • “I cannot rent to you. I am afraid of future liability, if you get sick.”
- • “You can only live here if there is someone to take care of you.”
- • “Before I give you apartment listings, I need a letter from your doctor or therapist saying that you can live on your own.”
- • Saying, “it is rented” when it is not. This can easily be tested by a case manager who anonymously can call the next day to see if any apartments are available for rent.
- ● Enforce a “no pets” policy against people with disabilities
- ● Require that all tenants be capable of “independent living”
- ● Require all tenants to have references from landlords for three previous years
- ● “We do not allow pets. I don’t care if it is a service dog.”
- ● “We do not rent to people on fixed incomes.”
- ● “We charge guest fees for all visitors, whether or not they are home health aides.”
- • Do you have a disability?
- • Tell me about your disability. How severe is it?
- • May I have permission to see your medical records?
- • Do you have someone who can vouch for your safety?
- • Have you ever been in a drug rehabilitation program?
- • Are you capable of independent living?
- • Is it all right for you to live alone?
- • Do you take medications?
- • Why do you receive SSI?
- • If the housing is set aside for someone with a disability, it is legal to ask if you qualify
- • Are you using illegal drugs?
- • Have you been convicted of the illegal manufacture or distribution of a controlled substance?
- • Would your tenancy be a threat to health and safety of other people?
- • Would your tenancy result in substantial property damage?
- • You may be asked about your ability to meet tenancy requirements, like paying the rent, obeying the lease, maintaining the property, and not disturbing other tenants.
- • First, the ordinance may prohibit group homes in single-family districts altogether.
- • Second, the ordinance may classify group homes as commercial, medical, or business facilities, all of which are excluded from single-family or even multi-family residential district.
- • Third, by defining “family” narrowly to include only related individuals or a very small umber of unrelated people, the ordinance may allow group homes in single-family districts as conditional uses, but define the “conditions” so restrictively, or leave so much discretion to the locality, that all group homes are excluded in practice.
- • Fourth, the ordinance may impose quotas on the number of group homes in a neighborhood or require homes to be a minimum distance from similar facilities.
- • Finally, the ordinance may impose special fire and safety code restrictions on group homes beyond those required of single-family residences.
Type of Housing Covered by the FHA
The FHA covers all housing providers except owners of 3 or fewer homes who do not advertise, owners living in buildings of 4 or fewer units clubs or organizations where occupancy is limited to their members. However, Connecticut law exempts only housing with 2 units and one of them is owner-occupied.
Any building, structure, or portion thereof which is occupied as, or designated or intended for occupancy, as a residence by one or more families, and any vacant land for the sale or lease of a dwelling.
Where Someone Resides:
According to the HUD regulations, this is where one stays for one week or more with the intent to return. This applies to long term residences, supported housing, and transitional living centers. Homeless shelters are not covered when individuals must stand in line for a one night’s stay.
NOTE: Other types of “public accommodations” or public programs or services may be covered by the ADA.
What Actions Are Illegal Under the Fair Housing Act?
Under the FHA it is a violation of federal law to discriminate in the following ways:
A. Refusal to Sell or Rent
NOTE: Refusal to renew is not specifically covered by the FHA, however, if, at the time the renewal is refused, the landlord has available apartments advertised for rent, the refusal to renew is functionally the same as a refusal to rent.
B. Discrimination in “Terms, Conditions, Privileges” of Sale or Rental
Discriminating in the “Terms, Conditions, Privileges of Sale or Rental” includes:
Example: A landlord requires a lease provision (such as taking medications, or allowing direct contact with the case manager) for persons who receive mental health services that is not in the leases of other tenants who reside in the same complex.
Example: A landlord owns two buildings. He forms a list of individuals of a certain program that he wants placed only in his second building.
C. Refusal to Permit Reasonable Modification
A refusal to permit, at the expense of the tenant, reasonable physical modifications of existing premises is illegal.
D. Refusal to Provide Reasonable Accommodation
It is discrimination under the FHA for a landlord, rental agent, or real estate broker to refuse to provide a reasonable accommodation through a waiver or modification of a rule or policy when it is necessary to enable a person with a disability to secure housing and to fully enjoy the use of that housing and any related facilities or services.
FORMS OF DISCRIMINATION
This is purposeful discrimination against a person because of his or her disability. The law makes it illegal for a landlord, cooperative, condominium or homeowner’s association to:
An act is considered to be discriminatory if it has the effect of discrimination, even if it is not intended in that way. A landlord who enforces rules which have a disparate impact is subject to the same penalties under the Fair Housing Act as a landlord who intentionally discriminates on the basis of disability.
Example: The law may, depending on circumstances, make it illegal for a landlord, cooperative, condominium or homeowners’ association to:
The following statements may be evidence of disparate impact discrimination:
MANIFESTATIONS OF DISCRIMINATION
Admission and Screening
A. General Rule: Landlords may not ask questions about an applicant’s disability, such as:
The Court enjoined PHA from using eligibility standards that require an applicant to demonstrate an ability to live independently, because such standards discriminate against tenants with disabilities. Cason v. Rochester Housing Authority
Requesting a description of an individual’s disability has been found to exceed the scope of permissible inquiry. (Robards v Cotton Mills Associates)
B. Some questions are permitted, if landlord consistently asks them of everyone:
Coercion, Intimidation and Retaliation are Prohibited
Under the Fair Housing Act, it is unlawful for any person to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed any right under the law or because the person has aided or encouraged any person in the exercise of his rights. This prohibits retaliatory actions against persons enforcing the Fair Housing Act.
EVICTION AND THE FHA
The Court Decides Whether an Eviction Is Necessary on a Case by Case Basis.
The court permitted eviction of a tenant with paranoid schizophrenia who repeatedly threatened to harm his elderly neighbors and yelled in his apartment. Despite his caseworker’s testimony that he had resumed taking his medication, the court found that the tenant was not “otherwise qualified” for residence, since he might become symptomatic again. Housing Authority of the City of Lake Charles v. Pappion, 540 So. 2d 567, (1989), The tenant in City Wide Assoc. v. Penfield, 564 N.E. 2d 1003, was more fortunate. Although she had defaced her apartment in an attempt to control her auditory hallucinations, the damage was minor and could be covered by her security deposit, and the tenant had sought counseling and medication. Therefore the eviction was deemed improper.
There were insufficient grounds under a state statute to evict a tenant with a neurological disorder and legal blindness. The neurological disorder caused the tenant to fall frequently, which created noise and physical damage to the apartment. However, the conduct did not materially affect the health and safety of other tenants, the physical damage to the apartment did not materially affect the condition of the premises, and the physical damage and noise were not material breaches of the lease. Waterbury Housing Authority v. Lebel Conn. Super. Ct. 1991.
THE FHA & ZONING
Governmental entities frequently employ exclusionary zoning to discriminate against people with psychiatric disabilities. Zoning is the process by which a local government regulates land use, structures, and development within its jurisdiction. Zoning ordinances typically divide a community into single-family residential districts and commercial districts. The ordinances restrict land use and building structures to fit the character of the district. Single-family districts normally contain only single-family dwellings, for example. Often the occupancy of those dwellings is restricted to individuals related by blood, marriage, or adoption, or to a small number of unrelated people.
Exclusionary zoning practices and rules that operate to exclude persons with psychiatric disabilities is illegal. The ability to live with one’s own natural family and the ability to live independently are considered to be “major life activities” as would the ability to find suitable housing.
Unfortunately, when people with psychiatric disabilities attempt to locate in single-family district, local governments often employ the applicable zoning ordinance to exclude them. This is commonly referred to as the “Not in My Backyard” NIMBY phenomenon. Opponents frequently claim that group homes will increase crime or traffic, decrease their property values, or detract from the esthetics of the neighborhood. Empirical studies have shown these fears to be groundless.
A zoning ordinance may illegally discriminate against group homes for people with psychiatric illnesses in one or more of the following ways.
In land use zoning cases, it is important to link the disability to the zoning provision being challenged. For example, a zoning provision prohibits unrelated transients from residing in a residential neighborhood can be challenged by showing that persons with a particular disability need to live together in an unrelated group to foster their recovery or treatment and cannot predict the length of need for such housing (Oxford House, Town of Babylon, 1993). Similarly, a limit on the number of unrelated people in a dwelling can be challenged by showing that it is not financially viable or therapeutically effective unless established for a number of residents great than allowed by the zoning ordinance (Smith Lee Associates, Inc. City of Taylor, 1996).
Whether a municipality must reasonably accommodate disabled persons under Section 3604(f)(3)(B) when enforcing otherwise neutral zoning restrictions was left open by the Supreme Court in City of Edmonds v. Oxford Housing Inc., 115 S.Ct. 1776 (1995). Many lower courts have ruled that they must do so. For instance, in Hovsons, Inc. V. Township of Brick, 89 F3d. 1096 (3rd Cir. 1996), the Court of Appeals held that communities cannot isolate or exclude group homes through unnecessary zoning restrictions. In Smith Lee v. Taylor, 102 F.3d 781 (6th Cir. 1996), the Court held that as a reasonable accommodation a city must allow an occupancy of nine, rather than six under the city code, because nine residents were necessary to allow the home to operate profitably and the additional three persons would not fundamentally alter the neighborhood. However, in Byrnat Woods Inn V. Howard County, 124 F.3d 597 (4th Cir. 1997), the Court refused to allow an expansion from eight to fifteen persons because it was not shown to be necessary nor reasonable. Normally the party requesting the accommodation must present evidence to the city to show that it is necessary to its financial viability to have the accommodation. Keys Youth Services v. City of Olathe, 75 F. Supp.2d 1235 (D.Kan.1999).