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The Exception To The General Rule: Who Pays For Reasonable Modifications That Should Have Already Been Part Of The Property

As I have discussed in a previous post (The Differences Between Accommodations and Modifications Under the Fair Housing Act), the general rule under the federal Fair Housing Act is that the requesting tenant is responsible for the costs associated with a reasonable modification (meaning a structural change) to the property.  But what happens when a tenant requests a modification that should have already been part of the property under the Fair Housing Act’s Design and Construction Guidelines?  In this event, landlords may need to make the modification at their expense—and they may need to keep their fingers crossed that the tenant doesn’t make a claim for discrimination!

The Fair Housing Act’s Design and Construction Guidelines require that covered multifamily dwellings built for first occupancy after March 13, 1991 meet certain minimum accessibility and adaptability standards.  The Department of Housing and Urban Development (HUD) has provided guidance stating that if a tenant makes a reasonable modification request for a structural change to the property that should have been included in the unit or common use area when the property was constructed, then the owner may be responsible for providing and paying for the requested structural changes.  This is an exception to the general rule under the Fair Housing Act that the requesting tenant is responsible for the costs associated with a reasonable modification request.

Moreover, and perhaps even more concerning to landlords, under the Act any person or entity involved with the design and construction process of the noncompliant property may be sued for discrimination.  So landlords who have a noncompliant property built may find themselves facing a discrimination claim from a disabled tenant.  Given this, if a landlord receives a reasonable modification request for a change to the property that should have already existed under the Design and Construction Guidelines, it may behoove that landlord to make that modification as quickly as possible, and at their expense!

The Differences Between Accommodations and Modifications Under The Fair Housing Act

Under the Fair Housing Act, property owners and management companies are required to ensure that all tenants have an equal opportunity to use and enjoy a property.  Generally, this means that management must grant reasonable accommodation and modification requests where necessary to afford a tenant the full use of the property.  But what is the difference between a reasonable accommodation and a reasonable modification under the Fair Housing Act?  Well, in a word—cost!

First things first though.  A reasonable accommodation is a change, exception, or adjustment to a property rule, policy, practice, or service.  A reasonable modification is a structural change made to the premises.  So, for example, a request by a tenant in a wheelchair for a guide dog in an apartment community with a “no pets” policy is a reasonable accommodation request; a request by a tenant in a wheelchair to install grab bars in the bathroom is a reasonable modification request.

In my experience, however, I have found that property owners and management companies are more interested in the cost aspect of reasonable accommodations and modifications.  Generally speaking, under the federal Fair Housing Act, management is responsible for the costs associated with a reasonable accommodation, while the tenant is responsible for the costs associated with a reasonable modification.  There are a few exceptions to the general rule regarding cost (which I will explore in a subsequent blog post), such as where the requested modification is one that should have been included in the unit or common use area when the property was constructed pursuant to the Fair Housing Act’s Design and Construction Guidelines, or where the property receives federal funding.

In closing, here are a few additional caveats regarding cost.  First, you may request that a tenant restore the modified portions of the interior of the unit to the previous condition only where “it is reasonable to do so.”  Contrast this from modifications to common areas of the property or the exterior of the unit, which the tenant is not required to restore to the original condition at the end of his or her tenancy.  And, while the tenant is generally required to pay for reasonable modifications made to common areas of the property, if the modification is made to a common area that is normally maintained by management, then management is responsible for the upkeep and maintenance of the modification as well.

Reasonable accommodation and modification requests can be tricky, and I would encourage property owners and management companies to consult with a local, experienced attorney regarding these requests—particularly given that other jurisdictions (such as Massachusetts) have enacted statutes placing the burden of the cost of a reasonable modification on the landlord.