By Meghan Carter, Equal Justice Works Fellow
and Charles Petrof,
Legal Assistance Foundation (LAF)
October 2011
Background
 The Fair Housing Act (FHA), 42 U.S.C. § 3601, et seq., is
a civil rights statute. (Title VIII of the Civil Rights Act of
1968.)
 Congress extended the FHA’s protection to include
persons with disabilities in the Fair Housing Act
Amendments of 1988 (FHAA).
 Similar statutes not covered in this training include:
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Section 504 of the Rehabilitation Act (29 U.S.C. § 794)
Americans with Disabilities Act (42. U.S.C. § 12101, et seq.)
Illinois Human Rights Act (775 ILCS 5/3-102.1(C))
Reasonable Accommodation
Mandate of the FHA
• Under the FHA, discrimination includes refusal to
make reasonable accommodations to rules, practices,
or services when the accommodation is “necessary to
afford such person equal opportunity to use and enjoy a
dwelling.” 42 U.S.C. § 3604(f)(3)(B).
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Even in the context of eviction, if it is possible for a landlord to
alter its rules so that a tenant with a disability can remain in the
housing, and it is not unduly burdensome, the landlord must
make the accommodation thereby preserving the tenancy.
Reasonable Accommodations in
Practice
 Inability to comply with some neutral rule; or need more time.
 Missed Recertifications
 Clutter (mixed)
 Past incidents
 Unpleasant habits. But see Groner v. Golden Gate Gardens Apts., 250
F.3d 1039 (6th Cir. 2001).
 Fires
 Drugs (past use)
 Additional services
 Physical modifications
 Parking Spaces
 Live-in Aide
 Transfers
 Seeing eye and companion animals
Tenant must prove:
the tenant(or her associate) has a disability;
the LL knew or should reasonably be expected to know
of the disability;
the accommodation of the disability may be
necessary to afford the person an equal opportunity
to use and enjoy the dwelling;
the accommodation is reasonable; and
the LL refused to make the requested accommodation.
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See DuBois v. Assoc. of Apartment Owners of 2987 Kalakaua,
453 F.3d 1175, 1179 (9th Cir. 2006); Oconomowoc Res.
Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir.
2002).
Housing Provider Defense: “Direct
Threat”
 FHA does not require “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.” 42 U.S.C. § 3604(f)(9).
 Prior incidents offered for showing that a tenant constitutes a
threat must be relevant, recent, and must form the basis of
the decision to evict. See Wirtz Realty Corp. v. Freund, 308
Ill. App. 3d 866 (1st Dist. 1999).
 Housing provider must attempt accommodation before
evicting because tenant is a direct threat. Douglas v.
Kriegsfeld Corp., 884 A.2d 1109, 1125 (D.C. 2005).
How to use the FHA to defend
against an Eviction
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Put the Reasonable Accommodation (“RA”) request
together.
Make a RA request under the FHA in writing to opposing
counsel with a deadline.
After the deadline has passed, if the accommodation has
not been granted, file your affirmative defense and
counterclaim based on the violation of the FHA.
Supplement your discovery with questions regarding the
landlord’s treatment of the RA letter.
Brainstorming the RA Request
 Think about the root of the problem that your client
currently faces that is threatening eviction, and see
who can come together to help client overcome the
problem.
 With your client’s approval, you should reach out to
family members, social workers, and doctors for
your client.
 Make sure you have a medical release on hand from your
client that authorizes you to speak with medical
professionals.
The Importance of Having a
Knowledgeable Professional
 Not a legal requirement
 Important for many reasons, including:
1.
gain buy-in from judiciary,
2.
demonstrate “nexus,” and
3.
help you and others understand nature and
limitations of a disability.
 To date, no LL has countered us with their own
medical expert.
 If feasible, include a letter from a medical
professional with your RA request.
Making the RA Request
 Make it in writing to opposing counsel.
 Give a deadline (at least 10 days) for response.
 Make clear that failure to respond will be deemed a
rejection of the accommodation request.
 If LL has questions, it is LL’s burden to “request
documentation or open a dialogue.” Jankowski Lee &
Assocs. v. Cisneros, 91 F.3d 891 (7th Cir. 1996).
 Request can be made up to loss of possession. Douglas v.
Kriegsfeld Corp., 884 A.2d 1109 (D.C. 2005).
 BEWARE:
 Do not unnecessarily make admissions;
 Do not phrase the request as a “settlement offer.” Be clear this
is a request for an RA under the FHA.
If RA is denied…
 File your affirmative defense and counterclaim based
on the violation of the FHA.
 Affirmative defense is germane - Marine Park Assocs. v.
Johnson, 1 Ill.App.3d 464, 274 N.E.2d 645 (1st Dist. 1971)
 Counterclaim spurs debate because seeks damages (and
attorney’s fees, where appropriate.)
 If your counterclaim is struck as not germane, consider
filing an affirmative case in state or federal court under
the FHA.
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Try a motion to consolidate new (state) case w/ eviction.
Federal court will likely abstain until state eviction action has
been concluded.
Supplemental Discovery
 Ask LL to identify all actions to accommodate before and
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after receiving RA request.
Dates and names of each person who received, considered,
processed the RA request.
Ask LL to identify all actions to follow-up or seek add’l info.
When did LL become aware of Tenant’s disability?
Is Tenant a threat to the health or safety of other
individuals? If so, how?
Would Tenant’s tenancy result in substantial physical
damage to the property of others? If so, how?
Common Themes / War Stories
 Tenant faces adverse housing consequences for
something that stems from a disability, and
 The issue has been or can be addressed without
imposing an undue burden on landlord.
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E.g., For-cause where issue has been addressed through tenant
change in behavior, new medications, social work assistance.
 War Stories
 Pork chop fire
 Personal cleanliness
 Grease down drain