Opinion Letter Relating to Rentals to Disabled Tenants

By: Bruce Gudin, Esq.

There are several different laws relating to sales and rentals to disabled persons (or persons with disabilities authorized to live with tenants):

The Federal Fair Housing Act

The Americans with Disabilities Act

The Rehabilitation Act

New Jersey Law Against Discrimination (NJLAD).

DISCRIMINATION:  All of these laws prohibit discrimination in renting to a person with a disability; instead, these laws require “reasonable accommodations.”  A reasonable accommodation depends on the facts of each situation; some situations relate to disabled persons who have physical disabilities and some situations relate to persons with mental disabilities.

Acts of discrimination include deceptive advertisements or practices that would discourage disabled persons from applying for a rental, failure to show certain available apartments to disabled persons because of a disability, proposing a higher rent, and the like.

If a prospective tenant requests a reasonable accommodation, a landlord must at least engage in a meaningful and good faith discussion with the tenant to see if the disability can be accommodated by some viable alternative by way of a less discriminative alternative.  [This alternative solution is more likely applicable to structural modifications, than to animals.]

DISABILITY: A disability includes a physical or mental impairment which substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment. This term does not include current, illegal use of or addiction to a controlled substance. For purposes of this part, an individual shall not be considered to have a handicap solely because that individual is a transvestite. As used in this definition:

(a) PHYSICAL OR MENTAL IMPAIRMENT INCLUDES:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or

(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.

24 CFR 100.201.

However, the NJLAD is more liberal; it does not include the phrase “which substantially limits one or more major life activities.” NJSA 10:5-5q defines “disability” as follows:

Physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or any mental, psychological or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.  Disability shall also mean aids or hiv infection.

24 CFR 100.202 (c) provides that:

“It shall be unlawful to MAKE AN INQUIRY to determine WHETHER an applicant for a dwelling, a person intending to reside in that dwelling after it is so sold, rented or made available, or any person associated with THAT PERSON, HAS A HANDICAP OR TO MAKE INQUIRY AS TO THE NATURE OR SEVERITY OF A HANDICAP OF SUCH A PERSON. However, this paragraph does not prohibit the following inquiries, provided these inquiries are made of all applicants, whether or not they have handicaps:

(1) Inquiry into an applicant’s ability to meet the requirements of ownership or tenancy;

(2) Inquiry to determine whether an applicant is qualified for a dwelling available only to persons with handicaps or to persons with a particular type of handicap;

(3) Inquiry to determine whether an applicant for a dwelling is qualified for a priority available to persons with handicaps or to persons with a particular type of handicap;

(4) Inquiring whether an applicant for a dwelling is a current illegal abuser or addict of a controlled substance;

(5) Inquiring whether an applicant has been convicted of the illegal manufacture or distribution of a controlled substance.

24 CFR 100.202(d) also adds the following protection to a landlord: “Nothing in this subpart requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”

REASONABLE ACCOMMODATION: A reasonable accommodation would include modifications in policies, practices, or procedures.  That includes the requirement that a “no pets” facility permit a “pet” as an aid to a disabled person.  The “pet” may be any domesticated animal; a dog, cat, canary, etc. – regardless of breed, size, weight or other characteristic.  However, if the accommodation is permitted, a disabled person has an advantage over non-disabled persons: because these animals are considered “companion animals,” “assistance animals” or “service dogs” they are not considered “pets” and therefore a landlord cannot impose any greater burden or restriction on the disabled tenant than on any other tenant.  Specifically, a landlord cannot require a “pet deposit” or other charge, fee, assessment or the like – these animals are not “pets.”

RECOMMENDATION: The various laws are all aimed at assisting disabled persons without imposing unreasonable burdens on landlords or other tenants. Because the penalties are severe, We recommend that unless a landlord has a strong, valid, specific reason to prohibit a companion animal, that landlords’ concede the issue and require a lease (or rider) with all of the protections that the law allows for the benefit of the landlord and other tenants.  Examples of protections to a landlord or other tenants include non-disturbing conduct (e.g., noise), restraints when out of the apartment (e.g., a leash), appropriate “shots” (inoculations) and licenses, that there be no odors and that any animal waste be promptly and properly disposed of.

Bruce E. Gudin, Esq. is with the law firm of Ehrlich, Petriello, Gudin & Plaza, P.C. headquartered in Newark, NJ. And is currently counsel to the New Jersey Property Owners Association. He was admitted to practice law in 1989 after graduating from Yeshiva University’s Benjamin N. Cardozo School of Law. Mr. Gudin attended undergraduate at Farleigh Dickinson University in Teaneck, New Jersey and C.W. Post in Long Island, NY where he received his B.S. Degree Magna Cum Laude in business. While attending C.W. Post he was awarded the Wall Street Journal Award for outstanding academic performance. Since graduating law school Mr. Gudin has been a frequent lecturer on the subjects of Debtor and Creditor Law, Credit and Collections Risk Analysis, Landlord/Tenant Law, Residential and Commercial Evictions in New Jersey, Commercial Leasing Considerations, and on Section 8 Housing in New Jersey. He regularly lectures for the National Business Institute as well as Lorman Education Services. He has also presented seminars on Landlord and Tenant matters to the New Jersey Institute For Continuing Legal Education. Mr. Gudin is also an active member of the New Jersey Apartment Association where he regularly consults on legislative issues affecting the multi-family housing industry. He can be reached at (973)643-0040 or on the web at www.EPGP-Law.com.