By Kimberly A. Hallquist, Esq.
Disabilities Rights Center, Inc.
Published in Headway, Summer 2004 edition
It is hard to imagine how a person who has survived a traumatic brain injury will be successful with the months of rehabilitation and medical procedures that might follow, without a place to call home. The availability of safe and affordable housing is critically important to a TBI survivor as that person will spend much energy on regaining speech, mobility and cognitive functions. Having to deal with institutionalization for want of a place to live in the community, or even homelessness, will severely compromise the TBI survivor’s ability to concentrate on learning to live in the world post-injury. Discrimination in housing based on one’s disability is unfair, and in some cases, illegal.
A recent study conducted by the New Hampshire Housing Finance Authority finds that the demand for housing continues to outpace the supply. As New Hampshire’s economy began to rebound in the 1990’s, there was a greater demand for workers to fill jobs. As new workers moved into the state housing vacancies dropped, creating a shortage of available units. When a shortage exists, rents tend to rise, making it more difficult for lower income people to find housing that they can afford. Since many in the disability community tend to be low income, conditions of low housing vacancies makes it very difficult to assist those with disabilities to find housing in the community. In addition to raising rents, low vacancy rates also means that landlords will have several applicants for an available unit, allowing him or her to choose among those with disabilities and those without disabilities. Landlords may also decide to evict tenants or not renew leases, knowing that it will be easy to refill the unit. It is these practices; discrimination based on disability, that this article addresses.
Persons with disabilities can look to both state and federal law for protection against discrimination in housing based on their disability. New Hampshire RSA 354-A contains the Fair Housing provisions within the State Commission For Human Rights statutes. Federal protection comes from the Fair Housing Act (FHA), contained in Title VIII of the Civil Rights Act of 1968, which was amended in 1988 to include disabilities as a protected classification. Another avenue of federal protection can be found in Section 504 of the Rehabilitation Act, which applies to programs that receive federal funding.
State anti-discrimination law
The state of New Hampshire declares that equal housing opportunity without discrimination is a civil right. The law states in part: “The opportunity to obtain housing without discrimination because of age, sex race, creed, color, marital status, familial status, physical or mental disability or national origin is hereby recognized and declared a civil right.” RSA 354-A:8. It is unlawful to discriminate in the sale or rental of a dwelling unit because the buyer or renter is disabled, because a person who will be living in the unit is disabled or because any person associated with the buyer or renter is disabled. Unlawful discrimination also includes the refusal of a landlord to allow reasonable modifications to the premises, at the expense of the person with a disability, where the modifications are necessary for the person to be able to fully enjoy the premises. Reasonable modifications could include installation of ramps, grab bars and air-conditioning. A landlord is also required to make reasonable accommodations in rules, policies, practices or services. Examples of reasonable accommodations include relaxation of a “no pet” policy to allow a service animal or assigning a handicapped parking space to a tenant.
The provisions of RSA 354-A do not apply to the sale or rental of a single family home if it is sold or rented by the owner, if the owner does not own more than one such single family home and if the owner does not advertise or utilize the services of a rental agent. It does not apply if the apartment building contains three or fewer units and the owner lives in one of those units nor does the law apply to situations where a room is being rented, if there are not more than five such rentals in the building and if the owner, or the owner’s family resides there as well. There are also limited exemptions for religious organizations, private clubs and nonprofit organizations.
Federal anti-discrimination laws
Like the state law, the federal Fair Housing Act (FHA) makes acts of discrimination in the sale or rental of most residential property illegal. The obvious act of discrimination would be to deny to rent or sell to a person because he or she has a disability. Other forms of illegal discrimination include: a landlord who sets different terms and conditions in the rental of a unit based on a person’s disability, a landlord who falsely states to persons with disabilities that there are no units available for rent and a landlord who provides different housing services or facilities based on a person’s disability. Federal law also covers discrimination by mortgage lenders.
As with state law, the FHA protects persons with disabilities in housing by requiring that landlords allow reasonable modifications to the unit, at the tenant’s expense, if those modifications are necessary for the person to use and enjoy the housing. In this case, the landlord may require the tenant to restore the property to its original condition once the unit is vacated. A landlord cannot refuse to make reasonable accommodations in the rules and policies or services provided.
Exempted from the law with respect to the sale or rental of housing units are owner-occupied buildings with no more than four units and single family housing that is sold or rented by the owner without the use of a real estate agent or broker as well housing that is owned and operated religious organizations and private clubs that limit occupancy to members.
Section 504 of the Rehabilitation Act applies to programs that receive federal financial and prohibits those programs from discriminating based on a person’s disability. The types of programs covered are housing for the elderly and individuals with disabilities and subsidized housing for low income families.
There are laws to protect people with disabilities from discrimatory practices in housing. If you feel that your rights, or the rights of someone you know, are being violated based on a disability, you need to take action. For more information on your rights to fair housing, including how to file a complaint and the applicable filing deadlines, please contact Disability Rights Center - NH at 1-800-228-0432, the NH Commission for Human Rights at 603-271-2767, US Department of Housing and Urban Development, Fair Housing Hub, Boston at 1-800-827-5005, The Fair Housing Project at NH Legal Assistance at 1-800-921-1115 or your private attorney.
Disability Rights Center - NH provides protection and advocacy statewide for people with disabilities. Learn more about the DRC and your rights by visiting their website at www.drcnh.org.