Understanding Your Rights as a Tenant with a Disability

Covered Disabilities

Disabled tenants are protected against housing discrimination by California’s Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA).

FEHA defines disability broadly to include both physical and mental impairments, including:  HIV/AIDS, multiple sclerosis, bipolar disorder, clinical depression, epilepsy, heart disease, and more. FEHA views disability as any condition that if left untreated limits a major life activity.

The ADA defines disability narrower.  Under the ADA, a disability must substantially limit a major life function if left untreated.  This definition is not likely to include major illnesses that can be treated with medication, even if the medication is palliative.

Each person’s disability is determined on a case-by-case basis.  A tenant must show that the disability affects their life, either limiting or substantially limiting a personal life activity.  For example, for some HIV is a disability because it is affecting day-to-day life.  For others, it would not be a disability.

Determining whether you are covered under FEHA or the ADA is a complicated inquiry, and it is recommended that you work with an attorney or nonprofit agency to determine eligibility.

Reasonable Accommodations Under Federal Law

The Fair Housing Amendments Act (FHAA) requires a landlord renting a building built after March 13, 1991 with four or more units and at least one elevator to provide reasonable accommodations and modifications. 42 U.S.C. § 3604.

FHAA defines discrimination as “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).  It “imposes an affirmative duty on landlords to reasonably accommodate the needs of” persons with disabilities not only with regard to physical accommodations but also with regard to the administrative policies governing rentals.  United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir. 1994).

To claim an accommodation, a tenant must show that:

  1. He or she is disabled within the definition of ADA;
  2. The landlord knew or should have known about the disability;
  3. The accommodation “may be necessary” for equal use and enjoyment of the unit; and
  4. The landlord refused to make the accommodation. United States v. California Mobile Home Park Mgmt. Co., 107 F 3d 1374, 1380 (9th Cir. 1997).

The FHAA definition of disability is the same as under the ADA. 42 U.S.C. § 3602(h)(1).   Infection with HIV qualifies as a disability under the FHAA. 24 C.F.R. § 100.201(a)(2); Bragdon v. Abbott, 524 U.S. 624, 639-642 (1998).

Examples of required accommodations include:

Parking.  A federally subsidized landlord was required to provide parking to physically challenged tenants where the impact on the landlord was insignificant.  Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2nd Cir. 1995).

Elevator Modifications. Landlord should not have allowed a quadriplegic who lived in second story apartment to crawl and drag his hips up and down filthy concrete stairs when elevator repairs were reasonable accommodation. Davis v. Lane Management, LLC, 524 F. Supp. 2d 1375 (S.D. Fla. 2007).

Reasonable Accommodations Under California Law

The Fair Employment Housing Act enables a tenant with a disability to request a reasonable accommodation so that person can use and enjoy housing in a way that is equal to a person without a disability. See generally Cal. Gov’t. Code § 12927. Where a request for accommodation is made, housing providers’ “rules, policies, practices, or services” must be bent, altered, or waived when necessary to accommodate a person with a disability. Id. at § 12927(c)(1).

Under California law, a landlord must allow a tenant to make reasonable modifications at the tenant’s expense.  Cal. Civil Code § 54.1.  The landlord may require the tenant to restore the property to its original condition after move-out.  Id.  This applies to all units in California, except where a landlord rents out one room in their own single family home.