Wheelchair access retrofit: Who pays?

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Mar. 11, 2010

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Rent it Right

Janet Portman
Inman News

Q: We have lived in our apartment, a ground-level unit in a new complex, for several years. Now my husband, who has multiple sclerosis, needs to use a wheelchair. Several of the doorways are too narrow to let the chair go through -- I have to help him up, support him, then fold and reopen the chair on the other side.

When we raised the issue with our landlord, he told us that modifying the doorways is possible, but that we'd have to pay for it. We don't have that kind of money. Do you have any suggestions? --Sarah and Tim S.

A: Your landlord is correct in noting that modifications to the living quarters of a person with a disability are usually the financial responsibility of the tenant. Widening doorways, lowering countertops and lowering light switches are among the modifications most often requested by tenants with disabilities.

In the majority of cases, the work required to implement changes like these is reasonable, and landlords must grant the request -- but they don't have to foot the bill.

Landlords can insist that the tenants obtain any necessary permits, do the work (or pay to have it done) in a workmanlike manner, and show that they have the resources to return the property to its original condition when they move out.

On that last point, landlords can't be unreasonable -- for example, it would be foolish to demand that a widened doorway be returned to its narrow configuration, or that a grab bar be removed, because these features won't diminish the value of the unit or cause problems for future occupants.

But before I admonish you to think creatively about how to finance this work, let's ask one key question: When was your complex built? More specifically, what is the precise date that tenants first occupied its apartments? If first occupancy began after March 13, 1991, it should have been constructed according to the federal accessibility guidelines. If it wasn't constructed properly, then any retrofitting of individual units is on the landlord's tab, not yours.

Your first order of business is to find out when your building was constructed and when it began accepting tenants. Go to your land use office (the one that issues building permits and performs inspections), and look for the final inspection date. If it was after March 31, 1991, you're in luck.

This building should have been constructed in accordance with accessibility guidelines. Perhaps the architect messed up, or the builder didn't follow the plans, or the owner intentionally disregarded the requirements -- as far as you're concerned, it doesn't matter who's responsible.

A major landlord recently learned this lesson the hard way. The A.G. Spanos Cos., after being sued by the National Fair Housing Alliance, agreed to retrofit 82 apartment buildings in 14 states, with wheelchair-friendly doorways, graded walkways and other improvements that will bring the buildings up to accessibility requirements. That's 12,300 apartments, and probably the largest settlement in the history of such lawsuits.

If your building should have had wider doorways in the first place, have another talk with your landlord and, if necessary, point him to the U.S. Department of Housing and Urban Development's information on the subject.

Its article, "Common Violations of the Fair Housing Act Design and Construction Requirements," restates the first-occupancy rule and spells out specific building practices that do not comply with the design and construction requirements. If that doesn't do the trick, go online to HUD and file a complaint.

Q: We make our living by buying, fixing up and renting single-family homes. One home is quite small; it has a modest master bedroom, a very small bedroom and a really small den. There's no garage and no yard. We feel it is suitable for four occupants, but were challenged recently when a family with two adults and three children asked to rent it. When we told them that we thought the house could not bear the wear and tear from this number of residents, they accused us of discriminating. Were we? --Don and Helen P.

A: You're up against the federal ban against familial discrimination. Landlords in most situations may not refuse to rent to families with children, and they may not indirectly exclude such families by setting overly restrictive occupancy limits (the law presumes that an occupancy policy that permits fewer than two people per bedroom is too restrictive).

For example, a landlord who insists on one person per bedroom will naturally end up turning away families whose children could easily and safely share a bedroom. Importantly, aggrieved prospects need not prove to a court that the landlord intended to exclude families; as long as the practice has the effect of discouraging or eliminating families, it's illegal.

The "two per bedroom" standard isn't absolute, however. As far back as 1989, HUD counseled that, in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit.

If you intend to limit bedroom occupancy to fewer than two persons, you'll need to make your case under that standard, which boils down to a deceptively simple question: Is your policy reasonable?

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