Author: David Wolowitz & Michael O'Connor, Prairie State Legal Services; Revisions by Lisa Branganca, Access Living
Last updated: April 2013
What Is It? The Fair Housing Amendments Act (hereafter referred to as “Act” or “FHAA”), as amended, prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18), and disability. This chapter will focus on the Act’s protections for persons with disabilities.
The Act uses the term "handicap" rather than the term “disability.” The term “disability” is preferred by the disability community, has the same legal meaning as “handicap,” and is used in other federal civil rights laws. Therefore, the term “disability” will be used below instead of the term “handicap.”
What Is Its Purpose? The purpose of the Act is to enable people with disabilities to secure and maintain housing on an equal basis with people who do not have disabilities. In other words, the Act is intended to open the housing market to people with disabilities, a housing market that has been historically unfriendly to the disability community. The Act's new construction provisions are intended to ensure that new multi-family housing is accessible to people with physical disabilities.
Who Can Benefit? A person who meets the Act's definition of a person with a disability and who is a victim of housing discrimination.
The FHAA prohibits discrimination in the sale and rental of a "dwelling." The Act does not apply to any housing that is not a "dwelling." Also, the Act does not apply to any housing that fits within one of several different "exemptions."
The term "dwelling" means any building or structure, or any part of it, which is designed or intended as a residence or actually occupied as a residence by one or more families. A family can be a single person. The term also includes any vacant land that is for sale or lease where such a building or structure will be located.
This definition includes apartments, condominiums, mobile home parks, trailer courts, housing cooperatives, and time-sharing properties. The term "dwelling" also includes buildings not originally designed as housing, if they are now being used for housing.
Example: A former office building that was remodeled as an apartment building is a "dwelling."
A hotel, motel, or other commercial public accommodation is not a dwelling within the meaning of the Act.
Note: Hotels and motels are "public accommodations" which are prohibited from discriminating against people with disabilities under Title III of the ADA. See the section of this guidebook titled "Places of Public Accommodation" in Chapter 2, Access to Services, Programs and Activities.
If the hotel has a separate wing with a residential apartment, that part is covered by the FHAA. A single room occupancy hotel may be covered by the FHAA when used as a long-term residence.
The "Mrs. Murphy" exception. The Act does not apply to dwellings where the owner actually maintains and occupies one of the units as his or her residence.
Note: Even where one of the above exemptions apply, the owner is prohibited from advertising in a discriminatory way.
Exceptions for religious organizations and private clubs. A private club that provides lodgings is allowed to give preference to its members. Also, the Act generally allows a religious organization (or any nonprofit agency controlled by a religious organization) to sell or rent any dwelling which it owns or operates only to persons of the same religion. The Act allows these preferences even though doing so allows a religious organization to discriminate against a person with a disability.
Certain Kinds of Dwellings Are Covered by Both the FHAA and by the ADA
Certain types of housing discrimination may violate both the Fair Housing Amendments Act and the Americans With Disabilities Act. That is because these types of housing are "dwellings" under the FHAA and "places of public accommodation" under the ADA. See the section of this guidebook titled "Places of Public Accommodation" in Chapter 2, Access to Services, Programs and Activities.
Examples: Homeless shelters, domestic violence shelters, nursing homes, and residential care facilities are both "dwellings" and "places of public accommodation."
In general, the term "disability" means a person who
- Has a physical or mental impairment which substantially limits one or more of a person's major life activities, or
- Has a record of such an impairment, or
- Is regarded as having such an impairment.
Note: The definition of "disability" in the FHAA is basically the same as the definition of disability in the Rehabilitation Act and, in the ADA. See the section of this guidebook titled "Who Has A Disability Under the ADA?" in Chapter 1, General Considerations.
Persons with disabilities under the Act include: individuals who have physical impairments (e.g., a person who uses a wheelchair due to a spinal cord injury, cerebral palsy, multiple sclerosis, or an amputation), individuals who have psychiatric disabilities (e.g., depression, anxiety disorder, bipolar disorder, or schizophrenia), individuals who have cognitive or development disabilities (e.g., Down Syndrome, autism, or a learning impairment), and individuals with sensory disabilities (a person who is blind or has a hearing impairment).
Note: Individuals who are currently using or addicted to an illegal drug are not considered to have a disability under the Act. However, persons who are in recovery from drug abuse are considered to have a disability under the Act. Persons who abuse alcohol are covered by the FHAA.
Persons Who Are a "Direct Threat" Can Be Excluded
A provider does not have to make a dwelling available to a person with a disability if that person is a "direct threat" to the health or safety of other persons. The same is true if the person would cause substantial physical damage to the property of others.
A housing provider can apply this "direct threat" exception only in rare circumstances. Sellers or landlords can legally apply it only in cases of a clear and substantial risk of danger to the health or safety of others, or to their property.
Before a housing provider can exclude you as a "direct threat", the provider is required to give you a reasonable accommodation that could ameliorate the risk.
Example: As a result of a tenant's mental illness, he/she has threatened and/or been aggressive toward another resident. Before the apartment complex can evict the tenant, it must provide any reasonable accommodation that will eliminate or acceptably minimize the risk that the tenant poses to other residents.
Discriminatory Housing Practices: In General
It is illegal under the FHAA to discriminate on the basis of disability. This includes:
When the provider takes one of the above actions, it is illegal discrimination. It does not matter whether the dwelling in question is ever sold or rented to anyone else.
Reverse discrimination. In general, it is legal to limit certain housing opportunities to people with disabilities.
(1) A privately owned, housing facility may lawfully restrict occupancy to persons with a disability.
(2) A housing provider may properly offer some or all of its units to persons with a disability, such as persons with mobility impairments, on a priority basis.
(3) Under certain federal and state housing programs in which dwellings are designed for persons with disabilities, only such persons are eligible to live in such dwellings.
Discriminatory Selection Criteria
It is illegal for a housing provider to discriminate by using certain criteria, standards or procedures that disqualify you on account of your disability. A housing provider may not hold you to a standard of performance or behavior to which other persons are not held.
A housing provider may not presume that you are less likely to be qualified than persons without a disability. Likewise, a housing provider cannot presume that you pose a greater threat to the health or safety of others than do persons without a disability.
(1) It is a violation of the FHAA for a public housing authority to require housing applicants to prove that they are able to live independently, if this has a discriminatory effect on persons with physical and mental disabilities.
(2) The FHAA prohibits a rule that refuses admission of persons with mental illness to community residences.
If you are a prospective buyer or renter of housing, the provider cannot legally ask whether you have a disability. Likewise, the provider cannot ask about the nature or severity of a disability. They also cannot ask these questions of any person associated with you.
Example: A city public housing authority violates the FHAA by using an application form that asks whether an applicant has an disability and/or by requiring all applicants to execute medical record release forms.
It is legal to ask certain questions that seem related to disability, if the provider asks these questions of all applicants, regardless of whether they have a disability. These acceptable questions include:
The last two inquires listed above are permitted only if occupancy in the dwelling is so restricted. Otherwise, the provider cannot make those inquiries.
If a housing provider gives a priority to persons with mobility impairments, it may ask applicants whether they have a mobility impairment that would qualify them for such a priority. It cannot ask whether they have other impairments.
Terms or Conditions of Sale or Lease
It is illegal for a housing provider to discriminate against you in the terms or conditions of sale of a dwelling because of your disability. Likewise, a landlord cannot discriminate in the terms or conditions of a lease.
(1) It is illegal for a landlord to require that a person who uses a wheelchair pay a higher security deposit than other tenants.
(2) It is illegal for a landlord to require a person with a disability to pay an extra fee for a live-in personal assistant.
Discrimination in Privileges, Services, and Facilities
It is illegal to discriminate against you in the privileges of a sale or lease of a dwelling, on the basis of "handicap." Likewise, it is illegal to discriminate as to the services or facilities offered by a dwelling.
(1) A landlord violates the FHAA by failing to make repairs or delaying the repairs because of your disability.
(2) A landlord is guilty of discrimination by failing to allow a person with a disability to use the swimming pool.
It is illegal under the FHAA for real estate agents or housing providers to engage in certain "steering" practices.
Steering practices are those intended to restrict your choices or other persons' choices when you or others are seeking to buy or rent a dwelling.
These prohibited actions include:
Discriminatory Advertisements and Notices
It is illegal under the FHAA for anyone who is trying to sell or rent a dwelling to discriminate in advertising. That happens when the advertisement indicates any preference, limitation, or discrimination because of disability. This rule applies to any written notices or statements that are made, printed, or published.
The term "written notices and statements" includes applications, flyers, brochures, deeds, signs, banners, posters, billboards or documents. The rule also applies to all statements made orally by a person trying to sell or rent a dwelling.
If you see certain words in an advertisement, there may be a possible violation of the Act. This depends on whether it is apparent from the context that discrimination is likely to result. Those words include: "crippled," "blind," "deaf," "mentally ill," "retarded," "impaired," "handicapped," and "physically fit."
There may also be a violation if you see the use of symbols or logotypes that imply or suggest that people with a disability are not welcome.
Providers are not required to use the phrase "equal housing opportunity" in their advertising.
False Statements About Availability of Housing
If you want to inspect a dwelling, or buy it, or rent it, you must be told the truth about its availability. It violates the FHAA when you are told, on the basis of your disability, that a dwelling is not available, when in fact, it is.
It is illegal to give false or inaccurate information about the availability of a dwelling for sale or rent. It is illegal to give false information to any person, including testers, regardless of whether such person is actually seeking housing.
Likewise, it is illegal to not tell you about suitably priced dwellings that are available for inspection, sale or rental.
The FHAA makes it illegal for any person, for profit, to use "block-busting" techniques that encourage any person to sell or rent their dwelling.
Block-busting occurs when the seller or landlord tries to get people to sell or rent by making statements that a person or persons with a disability are moving into the neighborhood.
Block-busting includes statements to the effect that undesirable consequences will result for the neighborhood or community.
Example: "You should sell because a group home for people with disabilities is coming into the neighborhood. This will lower your property values and the quality of our schools, and will cause an increase in criminal or antisocial behavior."
When Neighbors Use the Courts to Keep You From Getting Housing
When a group of persons with disabilities lives together in a neighborhood, the group's neighbors are not always friendly. Sometimes, the neighbors go to court to try to seek a court judgment ordering the closure of the home. The neighbors may be violating the FHAA if they have a discriminatory purpose in going to court.
Even where the neighbors claim that operation of the home violates a neutral zoning statute (i.e., permitting single- family homes only), the FHAA can be violated where there is a discriminatory intent on the part of the neighbors.
The FHAA prohibits certain zoning decisions that exclude persons with disabilities. The enforcement of zoning ordinances and local housing policies cannot be done in a way that denies people with disabilities access to housing on a par with those who do not have a disability.
This means a city cannot deny a special use permit if the denial has the effect of limiting the ability of persons with disabilities to live in the residence of their choice in the community.
(1) It violates the FHAA for a local authority to deny an application for a special use permit to operate a residence for persons with AIDS, where the intent and the effect of the denial are discriminatory towards persons with AIDS.
(2) A zoning agency order requiring that a nursing home for elderly persons with a disability be closed, on the ground that the home has an inadequate number of parking spaces to satisfy a zoning requirement, likely violates the FHAA.
In addition, even if a city issues a special use permit, the city may still violate the FHAA by imposing restrictions on the operation of the home that interfere with the ability of persons with disabilities to live there. Persons who reside in a group home may bring suit under the FHAA to challenge such restrictions.
On the other hand, blanket waivers of zoning laws are not required. Local zoning authorities have some discretion to deny special use permits to persons with disabilities who are seeking housing. The interest of such persons must be balanced against the interests of municipalities, including the need to regulate traffic and population density.
Restrictions On Group Living Arrangements
Some persons with disabilities live in group homes or other types of congregate living arrangements. They may be different from other homes in the community because they consist of persons with disabilities who are not related.
A local government may try to restrict this type of living arrangement. It is legal to place reasonable limits on the maximum number of occupants permitted to occupy a dwelling. On the other hand, the FHAA prohibits other kinds of land use restrictions on these group arrangements, where such restrictions are not imposed on families or on groups of similar size.
A restriction that focuses on the composition of households (i.e., what kinds of people are living in the home) cannot be applied in a discriminatory manner.
(1) A law that requires group homes for individuals with disabilities to get a special permit may violate the FHAA.
(2) A law that prohibits any new "family care home" from locating within 1000 feet of any existing family care home may be illegal discrimination, where it defines "family care home" as a facility where permanent care or professional supervision is present.
(3) A village refused to allow a dwelling to be used as a "community integrated living arrangement" (CILA) because it required a change in zoning classification and a sprinkler system. Persons with a developmental disability won a suit brought under the FHAA because their request that the village waive the sprinkler requirements was a reasonable one.
Discrimination in Loans and Other Residential Real Estate-Related Transactions
The FHAA also prohibits discrimination by a business that engages in residential real estate-related transactions.
The term "residential real estate-related transactions" means:
- Making or purchasing a loan or giving other financial assistance in order to buy or construct a dwelling, or to repair or maintain it;
- Making or purchasing a loan secured by residential real estate; or
- Selling, brokering, or appraising residential real property.
Businesses that make these transactions include banks and other mortgage lenders; real estate agents and realty corporations; and appraisers. The FHAA prohibits these businesses from discriminating on the basis of disability when making any of these transactions. Also, these businesses cannot discriminate in the terms or conditions of such a transaction.
Lenders discriminate in violation of the FHAA when they take any of the following actions based on disability:
The FHAA prohibits discrimination by businesses that appraise residential property or that use such appraisals.
The term "appraisal" means an estimate or opinion of the value of a specified residential real property. This value is used in connection with the sale, rental, financing, or refinancing of a dwelling. It can be oral or written, or transmitted formally or informally.
It is against the law for a person to use an appraisal of residential real property in connection with the sale, rental, or financing of any dwelling where the person knows or reasonably should know that the appraisal improperly takes disability into consideration.
You have the right to make reasonable modifications to your dwelling, if the modifications are necessary to allow you full enjoyment of the premises. The FHAA makes it illegal to refuse you the right to make these changes.
Examples of reasonable modifications:
(1) The installation of a flashing light to enable a person with a hearing disability to see that someone is ringing the doorbell;
(2) The replacement of doorknobs with lever handles for a person limited use of his/her hands or harms;
(3) The installation of fold-back hinges to enable a person in a wheelchair to go through a door;
(4) The construction of a ramp to enable a person in a wheelchair to enter the dwelling unit;
(5) Installation of grab bars in bath-rooms, and, if necessary, reinforcement of the walls to support the bars;
(6) Widening doorways to accommodate wheelchairs;
(7) Lowering kitchen cabinets to a height suitable for the tenant.
The owners or landlords are not required to pay for these modifications, but must allow them to be made at the expense of the person with the disability.
The "reasonable modification" rule lets persons with a disability make modifications, not just to their individual dwelling unit, but also to lobbies, main entrances of apartment buildings, laundry rooms, and other common use and public use areas. Again, this would be at the expense of the person with a disability.
What the landlord can require. The landlord can require that the resident provide a reasonable description of the proposed modifications. The landlord also can require reasonable assurances that the work will be done in a workmanlike manner and that any required building permits will be obtained. However, the landlord cannot make the resident use a particular contractor.
Restorations at the end of the tenancy. Where it is reasonable to do so, the landlord can refuse to allow a modification to the premises unless the person with a disability agrees agree that at the end of the tenancy he/she will restore the interior of the premises to the condition that existed before the modification (allowing for reasonable wear and tear). However, any modifications made to public use and common use areas do not have to be restored.
Not all modifications to your unit must be restored at the end of the tenancy. If the modification will not interfere with the landlord's or the next tenant's use and enjoyment of the premises, no restoration is required.
Example: When the modification is the widening of a bathroom doorway, the person with a disability does not have to pay for the doorway to be narrowed at the end of the lease, because a wider doorway will not interfere with the landlord's or the next tenant's use and enjoyment of the premises.
Escrow accounts to guarantee restoration. The landlord cannot make the tenant pay a higher security deposit than is customary. However, where it is necessary to make sure that funds will be available to pay for restorations at the end of the tenancy, the landlord may require that the tenant make payments into an interest-bearing escrow account.
These payments must be over a reasonable period and for a reasonable amount of money, not to exceed the cost of the restorations. The tenant is entitled to the interest that accrues on that account.
Tenants who want to request a reasonable modification or accommodation from their landlord, should click this link: Reasonable Accommodation Request to Landlord
You have the right to reasonable changes, modifications, or exceptions in your dwelling's rules, policies, practices or services, when this is necessary to allow you an equal opportunity to use or enjoy your dwelling. Such changes are called "reasonable accommodations." It is illegal for a landlord or condominium or cooperative to refuse to make such an accommodation.
(1) In some circumstances a landlord may have to honor a request of a person with a mobility disability to move to a lower floor apartment.
(2) A landlord was required to waive guest fees that would otherwise be charged for a tenant's home health care aide.
(3) The manager of an apartment with a "no pets" policy cannot refuse to let a housing applicant who is blind live in the apartment with a seeing eye dog.
(4) A landlord may have to reserve a parking space for a tenant with a disability where parking is on a first come, first served basis;
(5) A tenant who has a psychiatric disability may have the right to postpone an eviction hearing until he/she is out of hospital and able to understand the proceedings.
The "reasonable accommodation" requirement applies not just to the person's dwelling unit, but also to lobbies, main entrances of apartment buildings, laundry rooms, and other common use and public use areas.
This rule requires a landlord to make certain changes in his rules and policies and services. It does not require a landlord to offer housing of a fundamentally different nature.
If there are costs involved in changing rules, policies or services, a landlord can be required to incur "reasonable costs" to accommodate the tenant's disability. However, the landlord is not required to change rules, policies, or services if doing so would impose an undue financial or administrative burden on the landlord.
Example: A tenant with a disability cannot force the landlord to prepare meals for him/her because doing so would be an undue administrative burden.
Municipalities must also accommodate. Municipalities, as well as landlords, must allow "reasonable accommodations" for housing. A municipality must make a reasonable accommodation with respect to its zoning laws when this is necessary to allow you an equal opportunity to use and enjoy a dwelling. However, this is true only if it does not cause any undue hardship or fiscal or administrative burden on a muni
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