Law Protects Disabled Lease-Breaker

by Janet Portman, Inman News

A: The first thing to do is educate your landlord on his responsibilities under the federal Fair Housing Amendments Act, which protects the rights of disabled tenants. The Act has two broad rules for landlords: First, when a disabled tenant proposes a change in the landlord’s rules or policies, the landlord must comply unless the change would be unduly burdensome (generally, the landlord pays whatever expense is associated with the request). This is known as an “accommodation.”

For example, a tenant in a wheelchair would be entitled to preference when it comes to parking, which is otherwise often handed out on the basis of seniority. Second, when a tenant proposes modifying his own living space, the landlord must allow the modification — but again, subject to the reasonableness of the request (except in Massachusetts and some federally financed housing, the tenant pays for these modifications).

From the sounds of things, modifying your apartment isn’t feasible. You’re not asking for the relatively easy installation of grab bars or lowering of light switches. To accomplish the goal (to allow your husband to live safely and comfortably, by being able to enter the bathroom and move about in it), you’d have to expand the room, moving walls, fixtures and plumbing. This is major work, and few tenants are able to pay for it. Nor would most landlords want their building modified to this extent. Just as a landlord can refuse, say, to install an elevator in an old building because the cost would be unduly burdensome, you too can decide that major interior reconstruction is not a reasonable response to the problem.

Looking for a new place makes sense. In most situations, lease-breaking tenants would indeed be on the hook for the balance of the rent unless they come up with an acceptable substitute (or the landlord finds one, using reasonable efforts to re-rent). But we’re not talking about a normal situation here.

Discrimination against a disabled person includes “a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford (a handicapped) person equal opportunity to use and enjoy a dwelling.” (42 U.S.C. § 3604(f)(3)(B))

In practical terms, you are asking the landlord to vary a “rule or policy” — namely, the ending date of the lease — so that your husband can live in a place that is safe and accessible. At least one court has recognized the validity of a request like this (see, for example, the case of Samuelson v. Mid-Atlantic Realty Co., Inc. 947 F.Supp. 756 (D.Del., 1996)).

Have a talk with your landlord, and point out that early termination of your lease is the legally required response to your request for an accommodation based on your husband’s disability. If you don’t get anywhere, consider contacting HUD, where you can file a housing complaint online. Meanwhile, find a safe place and move. If your landlord keeps your deposit to cover unpaid rent, you’ll have to sue in small claims court to get it back. It’s hard to imagine a judge ruling against you and your husband.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at [email protected].

Copyright 2009 Janet Portman

See Janet Portman’s feature, Raiding Deposit Raises Legal Issue.