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!