Legal FAQs for REALTORS®
— Fair Housing
What is a reasonable modification? (August 21, 2013)
A reasonable modification means any change to the public or common use areas of a building or any change to a dwelling. Under the federal Fair Housing Act, discrimination because of a disability of the tenant, a person residing in or intending to reside in the property after it is rented or made available, or any person associated with the tenant, can include a refusal to permit, at the expense of the person having a disability, a reasonable modification of an existing premises occupied or to be occupied by the person if the modification is necessary to afford the person full enjoyment of the premises of a dwelling.
When reasonable, a property owner may condition permission for a modification on the tenant agreeing to: (1) restore the interior of the premises to the prior condition if reasonable to do so, reasonable wear and tear excepted; (2) provide a reasonable description of the proposed modification, as well as reasonable assurances that the work will be done in a workman-like manner and that any required building permits will be obtained; or (3) pay into an interest bearing escrow account, over a reasonable amount of time, a reasonable amount of money not to exceed the costs of restoration, if necessary to ensure funds are available for restoration. The interest accrues to the benefit of the tenant. An owner cannot increase the security deposit. Note: A resident cannot be charged for restoring common area modifications.
Due to a disability, a tenant requests an assistance animal as a reasonable accommodation. Can a property owner require the tenant to pay an additional deposit as a condition for allowing an assistance animal in the dwelling? (August 21, 2013)
No. The property owner cannot require the tenant to pay an additional deposit as a condition for allowing the assistance animal in the dwelling. However, the tenant would still be legally responsible for any damage caused by such an animal.
What is a reasonable accommodation? (August 21, 2013)
A reasonable accommodation is a change in rules, policies, practices, or services that is feasible and practical under the circumstances. Under the federal Fair Housing Act, discrimination because of a disability of the tenant, a person residing in or intending to reside in the property after it is rented or made available, or any person associated with the tenant, can include a refusal to make a reasonable accommodation in the rules, practices, or services if necessary to afford the person equal opportunity to use and enjoy a dwelling. A property owner must grant a tenant’s request for a reasonable accommodation unless the request is (1) unduly burdensome, a fundamental alteration of the landlord's program, or there is another accommodation that is just as reasonable; or (2) the tenant poses a direct threat to the health or safety of other residents or when the tenancy would result in substantial physical damage to the property of others.
A tenant has requested that she be allowed, as a reasonable accommodation for her severe depression, to have an emotional support animal in the property. The animal she would like to bring in is a pit bull. The property owner has heard terrible things about pit bulls, like how dangerous they are and does not want that type of dog in the property. Can the property owner reject this request? (August 21, 2013)
Possibly, but not without an assessment of whether the accommodation is needed and reasonable. After receiving such a request, the property owner must consider:
(1) Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
(2) Does the person making the request have a disability-related need for an assistance animal?
If the answer to question (1) or (2) is "no," then the federal Fair Housing Act does not require a modification to a property owner's "no pets" policy, and the reasonable accommodation request may be denied.
If the answers to questions (1) and (2) are "yes," the federal Fair Housing Act requires the property owner to make a reasonable accommodation to a "no pets" policy, unless doing so would impose an undue financial burden or would fundamentally alter the nature of the housing provider's services.
The request for the accommodation may also be denied if: (1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
Breed, size, and weight limitations may not be applied to an assistance animal. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal's actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
Due to a disability, a tenant requests an assistance animal as a reasonable accommodation. Can the property owner require the tenant to provide documentation evidencing the need for an assistance animal? (August 21, 2013)
It depends. One the request has been made, if the tenant's disability is known or readily apparent to the property owner, but the need for the accommodation (the assistance animal) is not readily apparent or known, the provider may request only information that is necessary to evaluate the disability-related need for the accommodation. However, if a person’s disability is obvious, or otherwise known to the provider, and if the need for the requested accommodation is also readily apparent or known, then the provider may not request any additional information about the requester's disability or the disability-related need for the accommodation.
Again, once the request has been made, if the tenant's disability is not obvious, a property owner may request information necessary to verify that the person meets the federal Fair Housing Act's definition of "disability" (i.e. has a physical or mental impairment that substantially limits one or more major life activities), describes the needed accommodation, and shows the relationship between the tenant's disability and the need for the requested accommodation.
A prospective tenant learns from a neighbor that the former tenant was infected with the HIV virus. The prospective tenant contacts the property manager to inquire about whether this is true. Is the property manager required to disclose such information? (August 21, 2013)
No. The federal Fair Housing Act prohibits agents from making unsolicited disclosures concerning whether sellers or property occupants have tested positive for HIV or have been diagnosed with AIDS. Additionally, the Texas Real Estate Licensing Act (TRELA) states that licensees shall have no duty to inquire about, make a disclosure related to, or release information related to whether a previous or current occupant of real property had, may have had, has or may have AIDS, HIV-related illness or HIV infection.
The National Association of REALTORS® provides guidance on how to respond to an inquiry like this and suggests stating: “It is the policy of our firm not to answer inquiries of this nature one way or the other since the firm feels that this information is not material to the transaction. In addition, any type of response by me or other agents of our firm may be a violation of the federal fair housing laws. If you believe that this information is relevant to your decision to buy/rent the property, you must pursue this investigation on your own.”
What is a "disability" under the federal Fair Housing Act? (August 21, 2013)
"Disability" means a person with physical or mental impairment which substantially limits one or more of a person’s major life activities; a record (history) of the impairment; or being regarded as having the impairment. Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The term does not include current illegal use or addiction to a controlled substance, but could protect persons who are recovering from substance abuse.
Legal Disclaimer: The material provided here is for informational purposes only and is not intended and should not be considered as legal advice for your particular matter. You should contact your attorney to obtain advice with respect to any particular issue or problem. Applicability of the legal principles discussed in this material may differ substantially in individual situations.
While the Texas Association of REALTORS® has used reasonable efforts in collecting and preparing materials included here, due to the rapidly changing nature of the real estate marketplace and the law, and our reliance on information provided by outside sources, the Texas Association of REALTORS® makes no representation, warranty, or guarantee of the accuracy or reliability of any information provided here or elsewhere on TexasRealEstate.com. Any legal or other information found here, on TexasRealEstate.com, or at other sites to which we link, should be verified before it is relied upon.