Q: My husband and I are four months into a yearlong lease. My husband has multiple sclerosis, and now uses a wheelchair. The bathroom door is too narrow to let him through, and once in, the chair wouldn’t even be able to turn because the room is so small. We need to find an accessible apartment, but the landlord says we have to find someone to take over the lease in order to avoid being responsible for rent for the rest of the lease term. What can we do? –Abbie G.
A: The first thing to do is educate your landlord on his responsibilities under the federal Fair Housing Amendments Act, which protects the rights of disabled tenants. The Act has two broad rules for landlords: First, when a disabled tenant proposes a change in the landlord’s rules or policies, the landlord must comply unless the change would be unduly burdensome (generally, the landlord pays whatever expense is associated with the request). This is known as an "accommodation."
For example, a tenant in a wheelchair would be entitled to preference when it comes to parking, which is otherwise often handed out on the basis of seniority. Second, when a tenant proposes modifying his own living space, the landlord must allow the modification — but again, subject to the reasonableness of the request (except in Massachusetts and some federally financed housing, the tenant pays for these modifications).
From the sounds of things, modifying your apartment isn’t feasible. You’re not asking for the relatively easy installation of grab bars or lowering of light switches. To accomplish the goal (to allow your husband to live safely and comfortably, by being able to enter the bathroom and move about in it), you’d have to expand the room, moving walls, fixtures and plumbing. This is major work, and few tenants are able to pay for it. Nor would most landlords want their building modified to this extent. Just as a landlord can refuse, say, to install an elevator in an old building because the cost would be unduly burdensome, you too can decide that major interior reconstruction is not a reasonable response to the problem.
Looking for a new place makes sense. In most situations, lease-breaking tenants would indeed be on the hook for the balance of the rent unless they come up with an acceptable substitute (or the landlord finds one, using reasonable efforts to re-rent). But we’re not talking about a normal situation here.
Discrimination against a disabled person includes "a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford (a handicapped) person equal opportunity to use and enjoy a dwelling." (42 U.S.C. § 3604(f)(3)(B))
In practical terms, you are asking the landlord to vary a "rule or policy" — namely, the ending date of the lease — so that your husband can live in a place that is safe and accessible. At least one court has recognized the validity of a request like this (see, for example, the case of Samuelson v. Mid-Atlantic Realty Co., Inc. 947 F.Supp. 756 (D.Del., 1996)). …CONTINUED
Have a talk with your landlord, and point out that early termination of your lease is the legally required response to your request for an accommodation based on your husband’s disability. If you don’t get anywhere, consider contacting HUD, where you can file a housing complaint online. Meanwhile, find a safe place and move. If your landlord keeps your deposit to cover unpaid rent, you’ll have to sue in small claims court to get it back. It’s hard to imagine a judge ruling against you and your husband.
Q: My local landlord-tenant ordinance requires that I pay interest on tenants’ security deposits. The ordinance doesn’t specify how the interest should be paid. To make things simple, I plan on giving tenants a credit once a year on their rent for that month. Is this a good idea? –Judith J.
A: A few states, and several cities, require landlords to pay interest on tenants’ deposits, and many of these laws and ordinances do specify how those payments should be made. Some allow landlords to do as you suggest, and others require landlords to pay interest directly to the tenant.
Because you have a choice, consider paying the interest directly to the tenant instead of accepting less rent. Practical considerations underlie this advice. First, your check provides a clear and easily found written record that you did indeed pay the interest owed. Having that readily available will be handy if a dispute arises over whether you followed the law. Second, suppose your tenant fails to pay the rent and you need to serve a notice to "pay or quit"? If the amount of rent you demand does not take into account any interest owed, you may find your tenant fighting the notice on the grounds that it incorrectly states the rent (when these notices fail to demand the exact amount of rent due, a judge may find that they are deficient, which would end your lawsuit and make you start over). To prevent a tenant from raising this defense, you could attach a check for the interest owed to the pay or quit notice … but why not simply pay by check in the first place?
Landlords who are not legally required to pay interest on deposits might consider doing so anyway. You’ll gain a marketing edge and score big with your tenants. From their point of view, it isn’t fair for landlords to be making money on the deposit.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.
***
What’s your opinion? Leave your comments below or send a letter to the editor. To contact the writer, click the byline at the top of the story.
